Text consolidated by Valsts valodas centrs (State
Language Centre) with amending laws of:
25 August 2010 [shall come
into force from 7 September 2010];
5 September 2013 [shall come into force from 20 September
2013];
19 September 2013 [shall come into force from 18 October
2013];
20 April 2017 [shall come into force from 1 May
2017];
21 February 2019 [shall come into force from 18 April
2019];
5 December 2019 [shall come into force from 31 December
2019];
30 April 2020 [shall come into force from 1 May
2020];
24 March 2022 [shall come into force from 21 April
2022];
5 May 2022 [shall come into force from 1 January
2023];
5 October 2023 [shall come into force from 25 October
2023].
If a whole or part of a section has been amended, the
date of the amending law appears in square brackets at
the end of the section. If a whole section, paragraph or
clause has been deleted, the date of the deletion appears
in square brackets beside the deleted section, paragraph
or clause.
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The Saeima 1 has adopted and
the President has proclaimed the following law:
Law on Public-Private
Partnership
Division A
General Provisions
Chapter I General Provisions
Section 1. Terms Used in this
Law
The following concepts and terms are used in this Law:
1) public-private partnership - co-operation between
the public and private sector simultaneously characterized by the
following features:
a) the co-operation takes place between one or several public
partners and one or several private partners involved in the
public-private partnership procedure;
b) the co-operation takes place in order to meet public needs
in executing construction work or providing services;
c) it is a long-term co-operation lasting up to 30 years, but
in the cases laid down in this Law - even longer;
d) the public and private partner pool and use the resources
available thereto (e.g. property, financial resources, knowledge
and experience);
e) the public and private partner share the responsibility and
risks;
2) contractual public-private partnership (hereinafter
- the contractual partnership) - the type of public-private
partnership where the co-operation between the public and private
sector takes place by the public and private partner concluding
and executing a partnership procurement contract or a concession
contract;
3) institutional public-private partnership
(hereinafter - the institutional partnership) - the type of
public-private partnership where the co-operation between the
public and private sector takes place by jointly establishing a
joint venture in accordance with the procedures laid down in this
Law with which the public partner concludes a partnership
procurement contract or a concession contract as with a private
partner;
4) partnership procurement contract - a public works
contract (if it also provides for the management of the
constructed structure) or a public service contract (if it also
provides for construction work that is an insignificant part of
the subject-matter of this contract) for pecuniary interest
concluded in writing between a public partner and a private
partner for a time period exceeding five years;
5) concession contract - a works concession contract or
a service concession contract concluded between a public partner
and a private partner;
6) works concession contract - a contract for pecuniary
interest concluded in writing according to which the private
partner executes the construction work referred to in Annex 1 to
this Law, or constructs or designs a structure and executes the
construction work referred to in Annex 1 to this Law or
constructs a structure, or constructs a structure, using any
means in line with requirements of the public partner, and
obtains the right to use this building as consideration (Clause 8
of this Section) or the abovementioned right together with
consideration. Concurrently, the exploitation risks of this
structure are also transferred to the private partner according
to the contract (Clause 9 of this Section);
7) services concession contract - a contract for
pecuniary interest concluded in writing according to which the
private partner supplies and manages the services not referred to
in Annex 1 to this Law, and obtains the right to use these
services as consideration (Clause 8 of this Section) or the
abovementioned right together with consideration. Concurrently,
the exploitation risks of these services are also transferred to
the private partner according to the contract (Clause 9 of this
Section);
8) the right to exploit the structure or services - the
right to receive a payment from end-users of the structure or
service or the right to receive consideration from the public
partner the amount of which depends on the demand of end-users
for the structure or service, or to receive both the payment from
end-users of the structure or service and the aforementioned
consideration from the public partner;
81) structure - the common result of the
construction work referred to in Annex 1 to this Law which is
sufficient in order for the structure to ensure some economic or
technical function;
9) structure or service exploitation risks - economic
risks when the income of a private partner depends on the demand
of the end-user of a structure or service for this structure or
service (demand risk) or on whether this structure or service is
being offered to an end-user in accordance with the requirements
laid down in the concluded concession contract (accessibility
risk), or on both the demand risk and accessibility risk;
10) end-user - a person, except for the public partner
and private partner, that in the case of the conclusion of
concession contract uses the structure or service exploited by
the private partner;
11) public-private partnership contract - a partnership
procurement contract or a concession contract;
12) partnership procurement procedures - the procedures
for the award of a partnership procurement contract;
13) concession procedures - the procedures for the
award of a concession contract;
14) public-private partnership procedures - the
partnership procurement procedures and concession procedures;
141) concession procedure document - any
document drawn up or referred to by the concession procedure
commission in order to describe or determine the elements and
requirements of the concession or concession procedure;
15) public partner - one or several of the following
subjects may act as a public partner:
a) the State as the initial legal person governed by public
law;
b) a derived legal person governed by public law;
c) the legal person referred to in Clause 16 of this
Section;
d) an association in which all members are the persons
referred to in Sub-clause "a", "b", or "c" of this Clause, or a
foundation in which all founders are the persons referred to in
Sub-clause "a", "b", or "c";
e) a public service provider within the meaning of the Law on
the Procurement of Public Service Providers;
16) legal person acting as a public partner - a legal
person governed by private law which concurrently conforms to
Sub-clause "a" and Sub-clause "b" or "c" of this Clause:
a) it has been established or is operating to ensure the needs
of the public not having a commercial or industrial
character;
b) it is subordinate to the State or a derived public entity
or it is the State or a derived public entity, or another legal
person governed by private law satisfying the criteria referred
to in this Clause supervises the management of such legal person
governed by private law, including exercises a decisive influence
in respect of such legal person governed by private law within
the meaning of the Group of Companies Law;
c) the activity thereof is financed, by more than 50 per cent,
by the State, a derived public entity, or such legal person
governed by private law which satisfies the criteria referred to
in this Clause;
17) public needs not having a commercial or industrial
character - needs that are not related to direct availability
of goods and services on the market and that are important for
meeting the public interests;
18) representative of the public partner:
a) an institution of direct administration, the body of a
public entity, or a natural person to whom the relevant State
administration task is delegated in accordance with the
procedures laid down in the State Administration Structure Law
and that is specified in the decision of the Cabinet referred to
in Section 16, Paragraph six of this Law if the public partner is
the State as the initial legal person governed by public law;
b) an institution of indirect administration, the body of a
public entity, or a natural person to whom the relevant State
administration task is delegated in accordance with the
procedures laid down in the State Administration Structure Law
and that is specified in the decision of the derived public
person referred to in Section 16, Paragraph six of this Law if
the public partner is a derived public entity;
c) the board of a capital company if the public partner is a
State or local government capital company;
d) an institution of a legal person governed by private law
that in accordance with the laws and regulations regulating its
operation is entitled to represent this legal person if the
public partner is another legal person governed by private law
that is not a State or local government capital company;
19) tenderer - a natural or legal person or the
subjects referred to in Clause 15 of this Section, or an
association of such persons in any combination thereof which
offers on the market to execute construction work, supply goods
or provide services accordingly, and participates in the
partnership procurement procedure or the concession
procedure;
20) lender's proposed tenderer - a person proposed by
the lender in accordance with the procedures laid down in this
Law in order for the public partner representative to conclude a
new public-private partnership contract therewith upon early
termination of the initial contract;
21) private partner - a tenderer or a special purpose
entity established thereby (in case of contractual partnership)
or a joint venture (in case of institutional partnership) with
whom the public partner has concluded a public-private
partnership contract;
22) joint venture - a capital company established by
the public partner and the tenderer (the private shareholder)
determined as a result of the public-private partnership
procedure;
23) shareholder contract - a contract that, in the case
of institutional partnership, is concluded by shareholders or
stockholders (hereinafter - the shareholder) of a joint venture
and that regulates the exercising of the rights of the public
partner and private partner as the shareholders of the joint
venture in order to facilitate performance of the public-private
partnership contract;
24) lender - a person which grants financing to the
private partner in order to ensure fulfilment of the obligations
of the public-private partnership contract;
25) information exchange agreement - an agreement
entered into by the public partner and the lender in accordance
with the procedures laid down in this Law and that governs the
information exchange procedure between the public partner and the
lender ensuring the execution of the public-private partnership
contract and exercising of the lender's intervention right;
26) special purpose entity - a commercial company
established by the tenderer determined as a result of the
public-private partnership procedure in the cases laid down in
this Law in order for the public partner to conclude a
public-private partnership contract with this commercial
company;
27) monitoring authority - the authority specified by
the Cabinet that fulfils the functions referred to in Section 9
of this Law;
28) concession procedure commission - the commission
established by a representative of the public partner or
representatives of several public partners for the performance of
the concession procedure;
29) complaint examination commission - the commission
established by the Procurement Monitoring Bureau to examine
complaints regarding infringements of the concession
procedure;
30) public partner resources - a tangible property or
aggregation of property owned by the public partner that without
separate payment is transferred to the private partner for use or
is invested in the equity capital of the joint venture in
accordance with the public-private partnership contract;
31) the most economically advantageous tender - the
tender selection criterion where such factors as delivery or
contract performance deadlines, exploitation and other expenses,
their efficiency, quality of construction works or services,
aesthetic and functional description, conformity with the
environmental protection requirements, technical advantages,
availability of spare parts, delivery safety, price and other
factors related to the subject of the concession contract that
are to be particularly determined and objectively comparable or
evaluated are taken into consideration;
32) contract price - the total payment for the
performance of a public-private partnership contract (not taking
into consideration the value added tax). It also applies to the
total amount of the financial resources (not taking into
consideration the value added tax) the private partner would
obtain by exercising the rights and obligations ensuing from a
public-private partnership contract and that may also include
payments of an end-user;
33) subcontractor - a person contracted by the tenderer
or a person contracted by him or her in turn who performs
construction work or provides services for the performance of a
public-private partnership contract;
34) life cycle - all consecutive and interlinked stages
including inter alia research and development, production,
trading and its conditions, transport, use, maintenance
throughout the entire period of existence of the structure or
provision of service, from recovery of raw materials or
production of resources to waste disposal, demolition of the
structure, and termination or use of the service;
35) electronic means - means suitable for processing of
the data received or sent via the electronic communications
network (also for digital compression) and storage thereof, and
also for transmission of data via the electronic communications
networks;
36) common procurement vocabulary (CPV) - a vocabulary
approved by the European Union which is applied to public-private
partnership procedures;
37) publication management system - the State
information system under supervision of the Procurement
Monitoring Bureau and available on its website which ensures that
the information to be prepared, submitted, and published in
accordance with laws and regulations is prepared and submitted to
the Procurement Monitoring Bureau, published on its website, or
sent to the Publications Office of the European Union for
publication in the Official Journal of the European Union. This
system shall contain information on persons on whom the
administrative penalty - a prohibition to exercise the rights -
the prohibition to hold offices the duties of which include
taking decisions in the field of public procurements and
public-private partnership or the conclusion of procurement
contracts, framework agreements, partnership procurement
contracts, or concession contracts, has been imposed for offences
in the field of public procurement and public-private
partnership;
38) buyer profile - the site of the public partner in
the State electronic information system publicly available on the
internet for the acceptance of tenders and requests to
participate, where the public partner posts information on
subsequent invitations to tender, regarding planned procurements,
concluded contracts, suspended procedures, and also other
information related to procurements as defined in the laws and
regulations;
39) electronic invoice - an invoice issued, sent, and
received in a structured electronic form allowing to process it
automatically and electronically;
40) Contract Register - information reflected in the
publication management system on a concession contract concluded
between a public partner and a representative of the public
partner or on amendments thereto which is published on the
website of the Procurement Monitoring Bureau. The Contract
Register shall contain data carrying information on the public
partner or the representative of the public partner, the private
partner, the date of conclusion of the contract, the
subject-matter of the contract, the contract price, the
performance deadline of the contract, amendments to the contract,
and also information on the actual performance of the contract
(contract price, performance deadline, contractor, and the cause
for termination of the contract, if applicable) and other
information as appropriate.
[25 August 2010; 5 September 2013; 20 April 2017; 21
February 2019; 5 December 2019; 24 March 2022; 5 May 2022; 5
October 2023]
Section 2. Purpose of this Law
(1) The purpose of this Law is to facilitate co-operation
between the public and private sector by efficiently using
resources of the public partner and the private partner for
meeting public needs, to ensure openness of the concession
procedure, free competition of private partners, and also equal
and fair attitude towards them.
(2) The purpose of this Law is to ensure transparency of the
performance of the concluded public-private partnership and to
promote the fulfilment of its obligations until expiry of the
validity of the relevant contract, promoting continuity of the
construction work and services provided for in this contract.
[20 April 2017]
Section 3. Exceptions to the
Application of this Law
(1) This Law shall not be applicable if the public partner
concludes a service concession contract for the following:
1) the purchase or lease of land, existing structure or other
immovable property or the acquisition of other rights to such
immovable property with any financial resources;
2) the purchase, development, production, or co-production of
such broadcast material intended for audio and audio-visual
electronic mass media services, if the contract is awarded by
electronic mass media, or the contracts for the provision of
transmission time or broadcasts that are awarded to electronic
mass media;
3) the arbitration and conciliation services;
4) the document certification services provided by
notaries;
5) the legal services the providers of which are designated by
a court or which are assigned by external laws and regulations to
carry out specific tasks under supervision of a court;
6) the legal services related to the exercise of official
authority;
7) the financial services related to the issue, purchase,
sale, or transfer of securities or other financial instruments,
services and activities of Latvijas Banka which are performed
through the European Financial Stability Facility and the
European Stability Mechanism;
8) the loans which are related or not related to the issue,
sale, purchase, or transfer of securities or other financial
instruments;
9) the services in the field of civil protection, civil
defence, and disaster prevention which are provided by
associations, foundations or unions and to which one of the
following CPV codes refers: 75250000-3, 75251000-0, 75251100-1,
75251110-4, 75252000-7, 75222000-8, 98113100-9, and 85143000-3,
except for the emergency medical services related to the
transport of patients;
10) the services which are provided by another public partner
or an association of public partners which, in accordance with
the external laws and regulations, have an exclusive right to
provide the relevant service;
11) the services to ensure the activities referred to in
Section 3, 4, 5, 6, or 7 of the Law on the Procurement of Public
Service Providers with the private partner which, in accordance
with the external laws and regulations, has an exclusive right to
provide the relevant service. The public partner shall notify the
European Commission of the awarding of such exclusive right. The
provisions of this Law shall be applicable to the concession
award notice if the laws and regulations of the relevant sector
do not provide for such obligation to notify;
12) the air transport services based on the issue of a licence
for operation within the meaning of the law On Aviation;
13) the lottery services to which the CPV code 92351100-7
refers with the private partner which, in accordance with
external laws and regulations, has an exclusive right to provide
the relevant service. Information on such awarding of concession
shall be published in the Official Journal of the European
Union.
(2) This Law shall not be applied when the concession contract
is concluded in accordance with the provisions of other
procedures and is awarded in accordance with:
1) an international agreement which, with the legal framework
of the European Union, has been entered into by a European Union
Member State with one or several countries, other than the
European Union Member States, or administrative units of such
countries regarding construction work, supplies or services in
connection with the participation of the states having signed the
agreement in implementation of a joint measure or the use of its
results. Public partner shall notify the European Commission of
all such agreements;
2) a specific procedure of an international organisation;
3) a specific procedure of an international organisation or
international financial institution if the concession contract is
fully financed by the relevant organisation or institution. If
the international organisation or international financial
institution finances the concession in the amount of at least 50
per cent, the parties shall agree on the applicable concession
procedures.
(3) This Law shall not be applicable if the public partner
concludes a concession contract which conforms to Section 3 of
the Law on the Procurement in the Field of Defence and Security,
and the concession contract is awarded in accordance with:
1) specific procedural provisions under international
agreements which have been entered into by one or several
European Union Member States and one or several countries, other
than the European Union Member States;
2) specific procedural provisions under international
agreements relating to the stationing of troops which refer to
the private partners of a European Union Member State or the
private partners of a country, other than a European Union Member
State;
3) a specific procedure of an international organisation,
irrespective of whether the public partner of a Member State of
the international organisation concludes a contract with the
private partner specified by the international organisation whom
a contract has been awarded by the relevant international
organisation according to the abovementioned procedure, or its
public partner awards a contract according to the abovementioned
procedure.
(4) This Law shall not be applicable to the awarding of a
concession contract which conforms to Section 3 of the Law on the
Procurement in the Field of Defence and Security if:
1) the Cabinet, in accordance with external laws and
regulations, has recognised the information on a concession
contract or its implementation as an official secret;
2) its application could possibly harm the protection of
essential State security interests. The Cabinet shall decide on
the protection of essential State security interests on a
case-by-case basis. The basis for the application of this
exception shall not be the protected information in itself, if
its protection can be ensured in a concession procedure in
accordance with this Law or the Law on Procurement in the Field
of Protection and Security;
3) the concession contract is awarded in accordance with a
co-operation programme implemented by two or more countries which
is targeted at research and development to create a new product
or which is necessary for further life cycle of this product or
part thereof. If the agreement on the implementation of such
co-operation programme has only been entered into by European
Union Member States, they shall notify to the European Commission
information on the part of research and development expenditure
against the total expenditure of the co-operation programme, on
the allocation of costs between Member States, and also the lot
of procurement to be implemented by each Member State;
4) the concession contract is concluded with a public partner
of another country which operates on behalf of the relevant
foreign country or its derived public entity (an entity
equivalent to derived public entities) in relation to
construction work or services which are directly related to
military equipment or information on which is protected
information, or which are directly intended for military purposes
or for such structures or provision of such services, information
on which is protected information;
5) the concession contract is concluded in a country, other
than a European Union Member State, in the situation when the
troops are stationed outside the territory of the European Union,
and the concession contract necessary for the provision of
international operations or international training is to be
concluded with the private partners that operate in the area of
such operations or training;
6) another exception specified in this Law is applicable.
(5) This Law shall not be applicable if the concession
contract is concluded for the following public water management
services:
1) the extraction and storage of drinking water, preparation
of drinking water for use, and supply thereof to the central
water pipe network until a service user;
2) the hydraulic engineering projects, irrigation, or land
drainage - provided that the volume of water intended for the
supply of drinking water is more than 20 per cent of the total
volume of water which is ensured by the abovementioned projects
or irrigation or drainage equipment if it is related to the
activities referred to in Clause 1 of this Paragraph;
3) the wastewater collection from a service user in the
central sewerage systems and discharge thereof to the waste water
treatment plants, waste water treatment and discharge in the
environment if it is related to the activities referred to in
Clause 1 of this Paragraph.
(6) This Law shall not be applicable when concluding a
concession contract the main purpose of which is to ensure or use
public electronic communications networks maintained by a public
partner corresponding to Section 1, Clause 15, Sub-clause "a",
"b", "c", or "d" of this Law, or one or several publicly
available electronic communications services provided.
(7) This Law shall not be applicable if a public partner
corresponding to Section 1, Clause 15, Sub-clause "e" of this Law
concludes a concession contract for the performance of its
activities in a country, other than a European Union Member
State, and neither infrastructure of the European Union, nor a
territory belonging to the European Union is used.
(8) This Law shall not be applicable if a public partner
corresponding to Section 1, Clause 15, Sub-clause "e" of this Law
concludes a concession contract for the activities referred to in
Section 3, 4, 5, 6, or 7 of the Law on the Procurement of Public
Service Providers if they have been recognised as performed in a
freely competitive environment in the relevant European Union
Member State where they are to be performed.
(9) This Law shall only be applicable to the service
concession contracts for the research and development services,
the CPV codes of which range from 73000000-2 to 73120000-9,
73300000-5, 73420000-2, and 73430000-5, if the following
conditions are met concurrently:
1) only the public partner will benefit from the results of
the service provided, using these results only for its own
needs;
2) the public partner will fully pay for the service
provided.
[20 April 2017]
Section 3.1 Mutual
Concession Contracts between Public Partners
(1) Within the meaning of this Section, such partner shall be
considered to be a public partner which conforms to Section 1,
Clause 15, Sub-clause "a", "b", "c", or "d" of this Law or which
conforms to Section 1, Clause 15, Sub-clause "a", "b", "c", or
"d" of this Law and performs the activities referred to in
Section 3, 4, 5, 6, or 7 of the Law on the Procurement of Public
Service Providers.
(2) This Law shall not be applicable if the public partner
concludes a concession contract with a person who conforms to the
following features concurrently:
1) it is under such control of the public partner which
manifests itself as the right to influence strategic objectives
and decisions of the activities of the controlled person, or
under the control of such person which is controlled by the
public partner in the abovementioned manner;
2) more than 80 per cent of its activities are comprised of
carrying out of specific tasks in the interests of the
controlling public partner or other persons controlled by the
abovementioned public partner;
3) there is no direct private capital participation in it,
with the exception of such form of private capital participation,
which in accordance with the laws and regulations governing
commercial law and the Treaty on the Functioning of the European
Union does not entail the rights to influence and control its
decisions and does not exert a decisive influence on it.
(3) This Law shall not be applied if the controlled person
corresponding to the features of Paragraph one of this Section
which is also concurrently the public partner, concludes a
concession contract with the controlling public partner or
another person controlled by the controlling public partner
within the meaning of Paragraph one, Clause 1 of this Section, if
a person with which the concession contract is concluded does not
have direct private capital participation, with the exception of
such form of private capital participation, which in accordance
with the laws and regulations governing commercial law and the
Treaty on the Functioning of the European Union does not entail
the rights to influence and control the decisions of such person
and does not exert a decisive influence on it.
(4) This Law shall not be applied if the public partner
concludes a concession contract with a person who conforms to the
following features concurrently:
1) it is under the joint control of several public partners
which manifests itself as the right to influence the strategic
objectives and decisions of the activities of the controlled
person;
2) more than 80 per cent of its activities are comprised of
carrying out specific tasks in the interests of the jointly
controlling public partners or other persons controlled by the
abovementioned public partners;
3) there is no direct private capital participation in it,
with the exception of such form of private capital participation,
which in accordance with the laws and regulations governing
commercial law and the Treaty on the Functioning of the European
Union does not entail the rights to influence and control its
decisions and does not exert a decisive influence on it.
(5) Within the meaning of Paragraph four of this Section, the
public partners shall exercise joint control over a person
if:
1) the administrative authorities of the controlled person are
composed of representatives of all public partners (individual
representatives may represent several or all involved public
partners);
2) all public partners have the right to jointly influence the
strategic objectives and decisions of the activities of the
controlled person;
3) the controlled person operates within the interests of the
public partners.
(6) This Law shall not be applied to the concession contracts
which, according to the exclusive right specified in the external
laws and regulations, have been concluded between two or more
public partners, if the following conditions are met
concurrently:
1) the concession contract establishes or implements
cooperation between the public partners with the aim of ensuring
public services under the competence thereof;
2) the cooperation is implemented in the interests of
public;
3) the share of the public services provided by the involved
public partners in an open market for the ensuring of which the
cooperation is implemented is less than 20 per cent.
(7) In order to determine a percentage of the activities
referred to in Paragraph two, Clause 2, Paragraph four, Clause 2,
and Paragraph six, Clause 3 of this Section, the average
financial turnover or another activity-based measure (for
example, costs of services, supplies or construction work of the
controlled person or the public partner) for the last three years
until awarding of the concession contract shall be taken into
account. If the controlled person or the public partner has been
established or has commenced activities after the set deadline or
if data on its financial turnover or activity-based measures are
not available due to its reorganisation or no longer apply, the
percentage of the activities may be proved by using business
projections.
[20 April 2017]
Section 3.2 Contracts
Concluded with a Related Company, Joint Venture, or Public
Partner which is Part of the Joint Venture
(1) Within the meaning of this Section, the related company
shall be considered the following:
1) a commercial company, cooperative society registered in
Latvia, European economic interest group, European cooperative
society, or European commercial company registered in Latvia
which consolidates its annual statements with annual statements
of the public partner corresponding to Section 1, Clause 15,
Sub-clause "e" of this Law (hereinafter in this Section - the
public partner) in accordance with the Law on the Annual
Financial Statements and Consolidated Financial Statements;
2) any company in which the public partner, in accordance with
the Group of Companies Law, has a decisive influence, or which
has a decisive influence in the public partner, or in which
another company has a decisive influence while concurrently
having a decisive influence in the public partner.
(2) In accordance with Paragraphs three and four of this
Section, this Law shall not apply to the concession contracts
which the public partner concludes with the related company, or
which the joint venture, established solely by the public
partners to perform any of the activities referred to in Section
3, 4, 5, 6, or 7 of the Law on the Procurement of Public Service
Providers, concludes with a company which is related to any of
such public partners.
(3) Paragraph two of this Section shall not be applicable to
the following:
1) the works concession contracts if at least 80 per cent of
the average total turnover of the related company for the
construction works executed over the last three years constitute
construction work executed for the public partner or other
companies related to this company;
2) the service concession contracts if at least 80 per cent of
the average total turnover of the related company for the
services provided over the last three years constitute services
provided to the public partner or other companies related to this
company.
(4) If the related company has been established or commenced
activities later and the relevant data on its average turnover
over the last three years are not available, the percentage of
the activities referred to in Paragraph three of this Section
shall be proved by using business projections.
(5) If more than one company related to the public partner
executes equal or similar construction work or provides equal or
similar services, the percentage referred to in Paragraph three
of this Section shall be calculated by taking into account the
total turnover which consists of the construction work executed
or services provided by such related companies.
(6) If the joint venture has been established for the purpose
of performing the relevant activity for at least three years and
each public partner is a part of the joint venture for at least
this period, this Law shall not be applicable to the concession
contracts which:
1) are concluded between the joint venture which is
established solely by the public partners to perform any of the
activities referred to in Section 3, 4, 5, 6, or 7 of the Law on
the Procurement of Public Service Providers, and any of such
public partners;
2) are concluded the public partner and the joint venture of
which the public partner is a part.
(7) Upon a request of the European Commission, the public
partner shall inform it of the related companies and joint
companies which conclude contracts by applying the exceptions
referred to in this Section, of the type and contract price of
the concession contract, and also submit the necessary proof to
the European Commission that the relationship between the public
partner and the related company or the joint venture conforms to
provisions of this Section.
[20 April 2017]
Section 4. Legal Arrangements
(1) The Public Procurement Law shall be applied to partnership
procurement contracts unless this Law lays down otherwise.
(2) Public service providers shall apply provisions of the Law
on the Procurement of Public Service Providers to partnership
procurement contracts, unless this Law lays down otherwise.
(3) The provisions of this Law shall be applied to the
concession contracts and institutional partnership.
(4) A concession contract the subject-matter of which is both
construction work and services shall be awarded according to the
legal arrangements applicable to the type of procurement which
characterises the main subject-matter of the relevant concession
contract. The main subject matter and the applicable concession
procedure shall be determined for a concession contract the
subject-matter of which partly includes the services referred to
in Annex 2 to this Law and other services, according to the
highest estimated contract price of services.
(5) If the subject-matter of a contract includes concessions
to which this Law applies, and also other elements to which this
Law does not apply, and different parts of the contract may be
separated objectively, the public partner is entitled to apply
appropriate legal arrangements to each lot of the contract or
enter into a full contract and apply this Law. If parts of the
contract may not be separated objectively, the applicable legal
arrangements shall be determined by the main subject-matter of
the contract, except for the case referred to in Paragraph nine
of this Section.
(6) If the subject-matter of a contract includes both
concessions to which this Law applies and elements of a
procurement contract to which the Public Procurement Law or the
Law on the Procurement of Public Service Providers applies, the
contracting right shall be awarded in accordance with the Public
Procurement Law or the Law on the Procurement of Public Service
Providers respectively if the contract price of the lot of the
procurement to which the specific law is applied is equal to or
exceeds the thresholds of contract prices specified therein.
(7) If a contract is intended to ensure activities in several
areas referred to in the Law on the Procurement of Public Service
Providers, the public partner may choose to conclude individual
contracts for each area of activity or conclude a full contract.
If the public partner chooses to conclude individual contracts
for each area of operation, the contract shall be awarded
according to the legal arrangements which characterise individual
characteristics of the relevant activity. If the public partner
chooses to conclude a full contract, the contract shall be
awarded according to the legal arrangements which are applicable
to the activity intended as the main activity of the contract,
except for the case referred to in Paragraph nine of this
Section.
(8) If, in accordance with Paragraph seven of this Section, it
is impossible to determine objectively which activity is intended
as the main activity of the contract, the contracting right shall
be awarded:
1) in accordance with the Public Procurement Law, if the
Public Procurement Law applies to any of the activities intended
under the contract;
2) in accordance with this Law, if neither the Public
Procurement Law, nor the Law on the Procurement of Public Service
Providers applies to any of the activities intended under the
contract.
(9) If the subject-matter of a contract includes both
concessions to which this Law applies and elements of a
procurement contract or activities to which the laws and
regulations governing procurement in the field of defence and
security apply, and the public partner has decided to conclude a
full contract or parts of the contract may not be separated
objectively, the applicable legal arrangements shall be
determined on the basis of the following features:
1) if Article 346 of the Treaty on the Functioning of the
European Union applies to any lot or activity of the contract,
the contract may be awarded without applying this Law, provided
that awarding of the full concession contract is justified on
objective grounds;
2) if the Law on the Procurement in the Field of Defence and
Security applies to any lot or activity of the contract, the
contract may be awarded in accordance with the Law on the
Procurement in the Field of Defence and Security, provided that
awarding of the full concession contract is justified on
objective grounds;
3) if the contract corresponds to both Clause 1 and Clause 2
of this Paragraph, Clause 1 of this Paragraph shall be
applicable.
(10) It shall not be permitted to divide contracts or enter
into a full contract in order to avoid application of this Law,
the Public Procurement Law, the Law on the Procurement of Public
Service Providers, or the Law on the Procurement in the Field of
Defence and Security.
(11) The provisions of the Commercial Law shall be applied to
the establishment, operation, and termination of operation of a
joint venture unless this Law lays down otherwise.
(12) The procedures for managing capital shares of a public
entity in a joint venture shall be governed by the Law on
Management of Capital Shares and Capital Companies of a Public
Entity.
(13) If several public partners conclude one public-private
partnership contract with a private partner, the provisions of
the State Administration Structure Law regarding the cooperation
in the State administration shall be applied as far as this Law
does not prescribe otherwise.
(14) If any features characterising aid for commercial
activity may be established within the framework of a
public-private partnership, control arrangements of aid for
commercial activity shall be applied to the granting of the
aid.
(15) The provisions of Chapter XIV of this Law shall not be
applied to the public partner who ensures financing of the public
partnership from the financial resources thereof.
[20 April 2017]
Section 5. Scope of Application of
this Law
(1) This Law prescribes:
1) the procedures by which public partners and representatives
of public partners shall act if they jointly conclude one
public-private partnership contract;
2) the procedures for taking the decision on the initiation of
a public-private partnership procedure;
3) the information to be included in a public-private
partnership contract, and also the procedures by which the
public-private partnership contract may be amended or terminated
before its expiry;
4) the procedures for disbursing compensation when terminating
a public-private partnership contract before its expiry;
5) the procedures for the establishment of a special purpose
entity and the procedures by which a public-private partnership
contract shall be concluded with a special purpose entity;
6) the procedures for entering into an information exchange
agreement and exercising of the lender's intervention right;
7) [5 May 2022];
8) the regulations for activities with the public partner
resources transferred to a private partner.
(2) In the field of concessions the Law prescribes:
1) exceptions to the application of this Law;
2) the procedures for the exchange of information, concession
procedure documentation, and document preservation;
3) the procedures for the establishment of the concession
procedure commission and activity thereof;
4) the procedures for the establishment of the complaint
examination commission and activity thereof;
5) concession procedures and procedures for their
application;
6) [20 April 2017].
(3) In the field of institutional partnership the Law
prescribes:
1) the procedures for selecting a private shareholder of a
joint venture;
2) the procedures for the establishment of a joint venture,
particularities of its operation and the regulations for
terminating its operation;
3) the procedures by which a public-private partnership
contract shall be concluded, amended, or terminated in case of an
institutional partnership;
4) the procedures for disbursing compensation when terminating
a public-private partnership contract before its expiry in case
of an institutional partnership;
5) the procedures for entering into an information exchange
agreement and exercising of the lender's intervention right in
case of institutional partnership.
(4) In the field of public-private partnership monitoring the
Law prescribes:
1) the authorities monitoring the public-private partnership
process and the competence thereof in monitoring matters;
2) the procedures for determining and financing the monitoring
authority and approval of the laws and regulations governing the
activity thereof;
3) the functions, rights, and obligations of the monitoring
authority;
4) the procedures by which the monitoring authority operates
as a public-private partnership competence centre;
5) the procedures for controlling the performance of the
public-private partnership contracts.
[20 April 2017; 5 May 2022]
Section 6. Joint Public-Private
Partnership Contracts of Public Partners
(1) One public-private partnership contract with a private
partner may be concluded by several public partners.
(2) If several public partners conclude one public-private
partnership contract, the representatives of public partners
shall enter into a written agreement on the following:
1) which representative of the public partner shall conduct
the partnership procurement procedure or concession
procedure;
2) the procedures for taking decisions if a joint decision of
public partners or representatives of public partners is
required;
3) the procedures for the co-ordination of opinions if an
individual decision of each public partner or representative
thereof is required;
4) which representative of the public partner shall enter into
an information exchange agreement with the lender and the
procedures for the exchange of information between the
representatives of public partners for the performance of this
contract, unless the lender prefers entering into an information
exchange contract with each representative of the public
partner;
5) the procedures by which they shall cover the necessary
expenses;
6) the procedures by which the representative of the public
partner who conducts the partnership procurement procedure or
concession procedure shall inform other representatives of public
partners of the course of the relevant procedure.
(3) The condition of Paragraph two, Clause 2 of this Section
regarding taking of a joint decision of public partners or
representatives of public partners shall be applicable, if this
Law does not stipulate that the decision is to be taken by each
public partner or each representative of the public partner.
(4) The representative of the public partner who in accordance
with Paragraph two, Clause 1 of this Section conducts the
partnership procurement procedure or concession procedure:
1) shall establish the concession procedure commission in
accordance with the procedures laid down in this Law where the
persons proposed by other representatives of public partners are
included;
2) shall provide information, notices or receive information
that is provided for in the Public Procurement Law, the Law on
the Procurement of Public Service Providers or this Law or in the
public-private partnership contract;
3) shall preserve documents of concession procedure commission
in accordance with the procedures laid down in Section 22 of this
Law.
(5) If this Law lays down that the decision of the concession
procedure commission is binding on the representative of the
public partner, such a decision shall be also binding on all
representatives of public partners who have signed the contract
referred to in Paragraph two of this Section.
(6) The representative of the public partner who in accordance
with Paragraph two, Clause 1 of this Section conducts the
concession procedure shall be indicated in the regulations of the
concession procedure (hereinafter - the regulations) and, if
necessary, also in other concession procedure documents, and the
monitoring authority shall be informed thereof in writing.
(7) If in case of an institutional partnership a
public-private partnership contract is concluded by several
public partners, all such public partners or any of such public
partners may become the shareholders of the joint venture.
(8) If in case of institutional partnership there are several
public partners in a joint venture as shareholders of the joint
venture, each public partner as a joint venture shareholder shall
individually exercise the rights laid down in this Law or perform
the activities provided for in this Law unless this Law lays down
that the relevant right shall be exercised or the relevant
activity shall be performed jointly by all public partners of the
joint venture.
(9) If several public partners conclude one public-private
partnership contract, the monitoring authority shall send
opinions and other documents to each representative of the public
partner.
[20 April 2017]
Section 7. Selection of
Institutional Partnership
(1) A joint venture may be established for the performance of
a public-private partnership contract if the public partner
wishes to exercise reinforced control of the performance of the
public-private partnership contract and to take part in the
management of the capital company, and conforms to the following
provisions:
1) according to the State Administration Structure Law the
commercial activity which will be performed by the joint venture
according to the public-private partnership contract may be
performed by the public partner as well;
2) the joint venture will carry out some administration task
assigned to the public partner according to the laws and
regulations or the procedures laid down in the State
Administration Structure Law if it conforms to the delegation
provisions.
(2) The public partner which wishes to establish a joint
venture for the performance of a public-private partnership
contract shall specify it in the decision on initiation of the
public-private procedure (Section 16, Paragraph six).
(3) If a joint venture is established, the private partner in
co-operation with the public partner as the shareholder of the
joint venture shall manage the joint venture so that the joint
venture as a private partner would ensure the performance of the
public-private partnership contract.
Chapter II Monitoring of the
Public-Private Partnership Process
Section 8. Competent Authorities
(1) The Ministry of Finance, the Procurement Monitoring
Bureau, and the monitoring authority shall supervise the
public-private partnership process.
(2) The Ministry of Finance shall evaluate the expected impact
of the conditions referred to in the financial and economic
calculations on the amount of the long-term liabilities of the
State budget, the balance of the general government sector
budget, and the debt, and give an opinion thereon.
(3) The Procurement Monitoring Bureau:
1) shall monitor the conformity of the partnership procurement
procedure and concession procedure with the requirements of laws
and regulations;
2) shall examine complaints regarding infringements of the
concession procedures referred to in Section 17, Paragraphs one
and seven of this Law;
3) shall examine administrative violation cases in the field
of public-private partnership, and impose administrative
sanctions;
4) shall ensure that the notices specified in this Law are
published on the website of the Procurement Monitoring Bureau and
sent for publication in the Official Journal of the European
Union, and also send information to the European Commission which
has been requested thereby;
5) shall fulfil other functions as laid down in laws and
regulations.
(31) The Procurement Monitoring Bureau is
functionally the highest authority in relation to the fulfilment
of the function referred to in Paragraph three, Clause 2 of this
Section.
(32) The Procurement Monitoring Bureau is entitled
to request and receive free of charge complete information on any
public-private partnership, the procedures for the awarding of a
contract, and the concluded contract.
(4) The monitoring authority shall be determined by the
Cabinet.
(5) The State Audit Office of the Republic of Latvia and other
competent authorities shall monitor the public-private
partnership process within the competence thereof.
[25 August 2010; 5 September 2013; 20 April 2017; 5
December 2019; 5 October 2023]
Section 9. Functions, Rights and
Obligations of the Monitoring Authority
(1) The monitoring authority shall evaluate the assumptions
included in the financial and economic calculations and risk
allocation between the public partner and the private partner in
the public-private partnership contract and shall give opinion
thereon.
(2) The monitoring authority shall give its opinions on the
conformity of risk allocation between the public partner and the
private partner with the concession contract within the meaning
of this Law in the following cases:
1) on the regulations and draft concession contract attached
thereto in the case referred to in Section 33 of this Law;
2) on amendments to the regulations in the case referred to in
Section 35, Paragraph four of this Law;
3) on draft amendments to the concession contract in the case
referred to in Section 64, Paragraph one of this Law;
4) on the draft new concession contract in the case referred
to in Section 82, Paragraph three of this Law.
(3) If the monitoring authority has given a negative opinion
on the assumptions included in the financial and economic
calculations and the risk allocation between the public partner
and the private partner in the public-private partnership
contract, then the representative of the public partner shall not
take further activities provided for in this Law. If the
monitoring authority has given an opinion that the risk
allocation between the public partner and the private partner
does not correspond to the concession contract within the meaning
of this Law, the representative of the public partner shall not
perform further activities provided for in this Law. In this case
the representative of the public partner shall assign the
concession procedure commission to make changes in the risk
allocation which would correspond to the concession contract
within the meaning of this Law, or to take a decision to suspend
the concession procedure.
(4) The Cabinet shall determine the procedures by which the
monitoring authority shall give opinions referred to in Paragraph
one of this Section, including the terms for giving the opinions,
in conformity with the contract price and risk allocation between
the public partner and the private partner provided for in the
financial and economic calculations.
(5) In order for a public-private partnership contract not to
make a negative impact on the amount of the long-term liabilities
of the State budget, the balance of the general government sector
budget, and the debt, the monitoring authority shall evaluate the
conformity of the accounting rules of the public-private
partnership assets with the conditions included in the opinion of
the Ministry of Finance (Section 15, Paragraph two) in the
following documents:
1) in the concession procedural documents (Paragraph two,
Clauses 1, 2, 3, and 4 of this Section);
2) in the partnership procurement procedural documents (in
regulations, draft partnership procurement contract and its
amendments, and also in a new draft partnership procurement
contract in case if the norms of Chapter XVII of this Law are
applied), unless it has been laid down in the opinion of the
Ministry of Finance (Section 15, Paragraph two) that the
evaluation of the monitoring authority in relation to the
abovementioned documents is not necessary;
3) in the reports on the performance of the public-private
partnership contract.
(6) If the monitoring authority has given an opinion that the
rules for the accounting of the public-private partnership assets
in the concession procedure documents referred to in Paragraph
two, Clauses 1, 2, 3, and 4 of this Section do not conform to the
conditions included in the opinion of the Ministry of Finance,
the representative of the public partner shall not take
subsequent activities provided for in this Law. In this case the
representative of the public partner shall assign the concession
procedure commission to make changes in the rules for the
accounting of the public-private partnership assets which would
conform to the conditions included in the opinion of the Ministry
of Finance, or take the decision to suspend the concession
procedure.
(61) If the monitoring authority has given an
opinion that the rules for the accounting of the public-private
partnership assets in the procurement procedure documents
referred to in Paragraph five of this Section do not conform to
the conditions included in the opinion of the Ministry of
Finance, the representative of the public partner shall assign
the procurement procedure commission to make changes in the rules
for the accounting of the public-private partnership assets in
order for them to conform to the provisions included in the
opinion of the Ministry of Finance or take the decision to
discontinue the procurement procedure.
(7) If the monitoring authority has given an opinion that the
rules for the accounting of the public-private partnership assets
determined in the progress reports of the public-private
partnership contract do not comply with the conditions included
in the opinion of the Ministry of Finance, the representative of
the public partner shall perform activities in order to eliminate
this non-compliance.
(8) When evaluating the progress reports of the public-private
partnership contract, the monitoring authority shall prepare
opinions on compliance of the construction work performed or
services provided with the relevant contract.
(9) The monitoring authority has the right to:
1) request and receive information related to the
public-private partnership procedure from the public-private
partnership procedure commission or representative of the public
partner;
2) request and receive information necessary to give the
opinions referred to in Paragraph one of this Section from the
representative of the public partner;
3) request and receive the concluded public-private
partnership contract, amendments thereto and the new
public-private partnership contract from the representative of
the public partner (in the case referred to in Section 82 of this
Law);
4) request and receive the reports referred to in Section 12,
Paragraph one of this Law on the course of the performance of the
concluded public-private partnership contract from the
representative of the public partner;
5) to conclude contracts with experts to ensure that the
functions laid down in this Law are fulfilled.
(10) The monitoring authority has the obligation:
1) to comply with the laws and regulations of the European
Union and Latvia in the field of public-private partnership when
fulfilling the function laid down in Paragraph one of this
Section;
2) once a year to submit the report on the concluded
public-private partnership contracts to the Cabinet;
3) in cases when it establishes facts not conforming to the
laws and regulations or the concluded public-private partnership
contracts, inform the representative of the public partner, the
supreme institution of the representative of the public partner
(if it exists), the institution having delegated the relevant
public administration task to the representative of the public
partner, the holder of capital shares of the State or local
government capital company, another authority governed by private
law determined in the articles of association of the legal
person, and also the competent State authorities thereof in the
cases provided for in the laws and regulations.
(11) The Cabinet shall determine the procedures for the
submission of the report referred to in Section 12, Paragraph one
of this Law and the information to be included therein.
(12) The representative of the public partner, the concession
procedure commission, another person or authority may address the
monitoring authority also in other cases not referred to in this
Law in order for it to evaluate the conformity of the assumptions
included in the financial and economic calculations and risk
allocation between the public partner and the private partner to
the concession contract and give an opinion thereon, or give an
opinion whether the accounting rules of the public-private
partnership assets determined in the progress reports of the
contract comply with the conditions included in the opinion of
the Ministry of Finance.
[25 August 2010; 5 September 2013; 20 April 2017]
Section 10. Monitoring Authority
Acting as the Competence Centre
The monitoring authority acting as the competence centre of
the public-private partnership shall:
1) prepare proposals in order to facilitate public-private
partnership development;
2) inform and consult regarding public-private partnership
matters;
3) identify and facilitate implementation of the most
appropriate foreign experience for Latvia in the field of
public-private partnership;
4) develop methodological materials in the field of
public-private partnership;
5) co-operate with other State administration authorities and
non-governmental organisations in the field of public-private
partnership;
6) carry out other tasks prescribed in the laws and
regulations governing the operation of the monitoring
authority.
Section 11. Laws and Regulations
Governing Operation of the Monitoring Authority
The Cabinet shall determine the procedures for the operation
and financing of the monitoring authority.
Section 12. Control of the
Performance of the Contract
(1) Once a year, after concluding a public-private partnership
contract, the representative of the public partner shall submit a
report on the progress in the performance of the contract to the
monitoring authority.
(2) Following the receipt of the progress report, the
monitoring authority shall evaluate the conformity of the
construction work or services referred to in the report with the
public-private partnership contract and shall prepare an opinion
thereon.
(3) The Cabinet shall determine the procedure for submitting
the reports in the performance of the contract and the
information to be included therein, and also the procedures by
which the monitoring authority shall prepare an opinion on the
conformity of the construction work or services referred to in
the reports to the public-private partnership contract and shall
send the abovementioned opinion to the representative of the
public partner; and cases when the opinion shall be also sent to
the State Audit Office and other competent authorities.
(4) The opinion referred to in Paragraph two of this Section
shall be preserved for 10 years following the expiry of the
relevant public-private partnership contract.
(5) The public partner and the private partner shall have the
obligation to ensure a separate accounting of the public-private
partnership project.
Chapter III Initiation of the
Public-Private Partnership Procedure
Section 13. Determining the Expected
Contract Price
(1) The estimated contract price of a partnership procurement
contract shall be determined in accordance with the Public
Procurement Law or the Law on the Procurement of Public Service
Providers, unless otherwise provided for in this Law.
(2) The estimated contract price of a concession contract
shall be determined as the total amount of financial resources
(except for the value added tax) which the private partner would
obtain by exercising rights and obligations resulting from the
concession contract. Upon calculating the estimated contract
price, the public partner shall take into consideration any
option and any amendments to the concession contract, including
extensions of the time periods, payments of an end user not made
on behalf of the public partner, any payments made by the public
entity, including consideration of the public partner the amount
of which depends on the demand of an end user or any financial
advantages provided by the public entity, income from the sale of
any assets included in the concession, value of all supplies and
services which the public partner has intended to make available
to the private partner and necessary for the fulfilment of the
concession contract, any third party payments or provided
financial advantages related to the performance of the concession
contract, and also the value of awards and payments if the public
partner intends to grant awards or make payments to the tenderers
of the concession procedure.
(3) The estimated contract price of a public-private
partnership contract shall be determined concurrently with making
financial and economic calculations, and it shall apply when the
concession notice is submitted for publication or, if submission
of such notice for publication is not necessary, before the
initiation of the concession procedure. The method for the
calculation of the estimated contract price shall be indicated in
the public-private partnership procedure documents.
(4) If at the moment of taking the decision to award the
concession contract the contract price of the concession contract
exceeds the initially estimated price by at least 20 per cent,
the contract price determined at the moment of taking the
relevant decision shall be considered as the estimated contract
price of the concession contract.
(5) For the purpose of determining the estimated contract
price of the concession contract, it shall not be permitted to
use a method which is aimed towards the non-application of the
concession procedure laid down in the Law. It shall not be
permitted to divide a concession project into lots in order to
avoid application of the conditions of the relevant concession
procedure.
(6) If several concessions regarding individual lots may be
awarded with regard to the expected subject-matter of the
concession contract, the estimated contract price shall be
determined as the total amount of all lots. The requirements of
this Law for publication in the Official Journal of the European
Union shall be applied to each lot, if the total amount of lots
is equal to or exceeds the thresholds of contract prices
specified by the Cabinet.
[20 April 2017]
Section 13.1 Threshold of
the Contract Price
The threshold of the contract price referred to in Section 13,
Paragraph six, Section 20, Paragraph three, Section
31.1, Paragraph three, Clause 2, Sub-clause "a",
Section 31.2, Paragraph one, Clause 2, Section
37.5, Paragraph three, Section 37.6,
Paragraph three, Section 39, Paragraphs two, three, six, nine,
and eleven, Section 63, Paragraph five, Clause 1 of this Law
shall be determined by the Cabinet on the basis of the
international commitments of the European Union in relation to
the thresholds of contract prices which must be followed by the
public partner. The Cabinet shall determine the threshold of
contract price at least once in every two years within one month
after the European Commission has notified the relevant threshold
of contract price in the Official Journal of the European
Union.
[20 April 2017; 5 May 2022; 5 October 2023]
Section 14. Making of Financial and
Economic Calculations
(1) Financial and economic calculations are made to determine
the applicability of the public-private partnership to the
implementation of the particular project from the point of view
of rational and efficient use of financial resources of the
public entity and what type of a public-private partnership
contract is to be concluded in order to successfully implement
the relevant project for performing construction work or
providing services, taking into consideration the impact of the
potential public-private partnership contract on the amount of
the long-term liabilities of the State budget, the balance of the
general government sector budget, and the debt.
(2) The Cabinet shall determine the procedures by which the
type of a public-private partnership contract is determined and
financial and economic calculations are made.
(3) The decision to make financial and economic calculations
shall be taken:
1) if the public partner is the State - the member of the
Cabinet who is responsible for the field where the public-private
partnership project is intended to be implemented;
2) if the public partner is a local government - the council
of this local government;
3) if the public partner is a derived public entity (except
for the local government) - the body of this public entity;
4) if the public partner is a legal person - an authority of
this legal person that is entitled to take such a decision.
(4) The decision to make financial and economic calculations
shall be sent by the public partner to the monitoring authority
which, upon receipt of the relevant decision, shall publish it on
the website of the monitoring authority in accordance with the
procedures laid down by the Cabinet.
[20 April 2017]
Section 15. Opinions of the
Competent Authorities
(1) After making the financial and economic calculations, the
abovementioned calculations shall be sent:
1) to the Ministry of Finance - in order to receive an opinion
on the expected impact of the conditions referred to in the
financial and economic calculations on the amount of the
long-term liabilities of the State budget, the balance of the
general government sector budget, and the debt;
2) to the monitoring authority - in order to receive an
opinion on the assumptions included in the financial and economic
calculations and the risk allocation between the public partner
and the private partner within the public-private partnership
contract.
(2) In its opinion, the Ministry of Finance shall indicate the
rules for the accounting of the public-private partnership assets
referred to in the financial and economic calculations that are
the basis for the conclusion that the public-private partnership
contract will not have undesirable effects on the amount of the
long-term liabilities of the State budget, the balance of the
general government sector budget, and the debt.
(3) The Cabinet shall determine the procedures by which the
Ministry of Finance gives the opinion referred to in Paragraph
one, Clause 1 of this Section.
[20 April 2017]
Section 16. Taking the Decision on
the Initiation of the Public-Private Partnership Procedure
(1) The opinion of the Ministry of Finance finds that the
potential public-private partnership contract does not have an
undesirable effect on the amount of the long-term liabilities of
the State budget, the balance of the general government sector
budget, and the debt, the decision on the initiation of the
public-private partnership procedure shall be taken by:
1) the Cabinet if the public-private partnership contract is
concluded by the State or a derived public entity acting as a
public partner (except for the local government);
2) the council of the local government if the public-private
partnership contract is concluded by a local government acting as
the public partner;
3) the decision-making body determined in the articles of
association of the legal person if the public-private partnership
contract is concluded by a legal person acting as a public
partner;
4) the relevant authority referred to in Clause 1, 2, or 3 of
this Paragraph if the public-private partnership contract is
concluded by a public authority or a company of a public
authority within the meaning of the Law on the Procurement of
Public Service Providers.
(2) If the Ministry of Finance indicates in its opinion that
the potential public-private partnership contract has undesirable
effects on the amount of the long-term liabilities of the State
budget, the balance of the general government sector budget, and
the debt, the decision on the initiation of the public-private
partnership procedure shall be taken by the Cabinet.
(3) If the State or a derived public entity have a decisive
influence over a capital company within the meaning of the Group
of Companies Law, then the authorities referred to in Paragraph
one, Clauses 3 and 4 of this Section shall take the decision on
the initiation of the public-private partnership procedure when
receiving a prior written agreement of the holder of capital
shares of the relevant State or derived public entity.
(4) The authorities referred to in Paragraph one and two of
this Section shall take the decision on the initiation of the
public-private partnership procedure based on the financial and
economic calculations and opinions of the Ministry of Finance and
the monitoring authority.
(5) If the monitoring authority has given an opinion that the
risk allocation between the public partner and the private
partner does not correspond to the concession contract, the
decision on the initiation of the concession procedure shall not
be taken.
(6) Each body of the public partner referred to in Paragraphs
one and two of this Section involved in a public-private
partnership project shall include the following information in
the decision on the initiation of the public-private partnership
procedure:
1) the public-private partnership procedure by which the
tenderer with whom the public-private partnership contract will
be concluded shall be determined;
2) the representative of the public partner;
3) the duration of the public-private partnership contract
ensuing from the financial and economic calculations and opinion
of the Ministry of Finance;
4) the public partner resources to be transferred to a private
partner, or in case of institutional partnership - to be invested
in a joint venture;
5) the rules indicated in the opinion of the Ministry of
Finance for the accounting of the public-private partnership
assets;
6) in case of institutional partnership - the fact that the
representative of the public partner will be the holder of
capital shares owned by the public partner in the joint venture
in accordance with the Law on the State and Local Government
Capital Shares and Capital Companies;
7) other conditions for the implementation of public-private
partnership that are of significance for meeting the public
interests.
(7) If the opinion of the monitoring authority indicates that
an exact conclusion on whether the risk allocation referred to
therein corresponds to the concession contract cannot be made
based on the financial and economic calculations, the bodies of
the public partner referred to in Paragraphs one and two of this
Section shall take the decision to conclude the partnership
procurement contract and to apply the partnership procurement
procedure.
(8) The decision to conclude a public-private partnership
contract for a period of time that exceeds 30 years shall be
taken by considering the condition referred to in Section 60,
Paragraph three of this Law.
(9) If it is determined in the decision on the initiation of
the public-private partnership procedure that a partnership
procurement contract is to be concluded, the period for the
preservation of documents specified in Section 22 of this Law
shall be applied to the preservation of the decision on the
initiation of the public-private partnership procedure, the
relevant financial and economic calculations and opinions of the
competent authorities.
[25 August 2010; 20 April 2017]
Division B
Concession Procedures
Chapter IV. Types of Concession
Procedures, Exchange of Information and Documentation
Section 17. Types of Concession
Procedures and their Application
(1) In order to determine the tenderer to whom the concession
contract will be awarded, the following concession procedures
shall be applied:
1) the procedure without the selection of tenderers;
2) the procedure with the selection of tenderers;
3) the competitive dialogue;
4) the negotiated procedure.
(2) The competitive dialogue procedure shall be applied
if:
1) the needs of the public partner cannot be met without
adjusting solutions already available on the market;
2) the concession contract includes innovative solutions;
3) the concession contract cannot be awarded without prior
negotiations due to special circumstances which refer to the
character, complexity or legal and financial structure of the
concession or due to related risks;
4) the public partner is not able to prepare technical
specifications with a sufficient accuracy by referring to
standards or technical specifications.
(3) [20 April 2017]
(4) [20 April 2017]
(5) [20 April 2017]
(6) The negotiated procedure shall be applied if:
1) the construction work or services provided for in the
concession contract may only be ensured by a specific tenderer in
one of the following cases:
a) the objective of the concession contract is to create or
purchase a unique piece of art or artistic performance;
b) lack of competition due to technical reasons;
c) exclusive right is present;
d) protection of the exclusive rights which are not referred
to in Sub-clause "c" of this Paragraph, including intellectual
property rights, needs to be ensured;
2) the exceptions referred to in Clause 1, Sub-clauses "b",
"c", and "d" of this Section are only applicable, if no valid
alternative or substitute is present or if the reason for the
lack of competition is not the requirements specified in the
concession procedure documents;
3) as a result of the procedure referred to in Paragraph one,
Clause 1, 2, or 3 of this Section, requests to participate or
tenders have not been submitted or tenders which are not in
conformity with the concession contract and fail to comply with
the requirements specified in the concession procedure documents
without significant amendments have been submitted, or requests
to participate have been submitted by the tenderers who do not
comply with the qualification requirements and are to be excluded
from the concession procedure, and if the initial provisions for
the performance of the concession contract are not significantly
changed. Upon a request of the European Commissioner, the public
partner shall send it the final report of the concession
procedure.
(7) If the public partner enters into a concession contract
for the services referred to in Annex 2 to this Law, it may
decide not to apply the concession procedures specified in this
Law, except for the requirements referred to in Sections 18, 19,
21, 22, 23, Chapter V, Section 33, Paragraphs twelve, thirteen,
and fourteen, Sections 34, 35, 36, 36.2, Section 38,
Paragraphs two and three, Section 39, Paragraphs six, seven, and
eight, Section 53, Paragraphs two and three, Section
53.2, Section 62, Section 62.1, and Section
63 of this Law.
[20 April 2017; 5 October 2023]
Section 17.1 Privileged
Concession Contracts
(1) If the subject-matter of the intended concession contract
allows it, the public partner is entitled to, within the scope of
measures intended for specific groups of persons, reserve a
possibility to participate in the concession procedure only to
such tenderers whose number of employees with disability account
for more than 30 per cent of the average number of employees per
year.
(2) If Paragraph one of this Section is applied, the
concession procedure commission or the public partner shall
indicate this in the relevant concession notice.
[20 April 2017; 5 October 2023]
Section 18. Exchange of
Information
(1) Exchange of information between the concession procedure
commission and tenderers shall take place by transferring
information in person (which is confirmed by a certificate of
receipt thereof), by mail, fax or electronically in accordance
with the provisions of Paragraphs three and four of this Section
and Section 19 depending on the choice of the concession
procedure commission.
(2) Verbal communication may be used for the exchange of
information which does not refer to concession procedure
documents, requests to participate, and tenders. If verbal
communication may affect the content of requests to participate
or tenders and the evaluation of tenders, the content thereof
shall be documented in writing or audio recordings.
(3) The concession procedure commission shall choose such
means for the exchange of information which are generally
accessible, in order not to hinder the access by tenderers to the
concession procedure, and such method for sending the documents
referred to in this Law which ensures the receipt of information
as soon as possible. If electronic means are used for the
exchange of information, such means of communication shall be
chosen which are publicly accessible and compatible with
generally used products of information and communication
technologies, thereby avoiding the possibility of discriminating
tenderers on these grounds.
(4) The exchange and storage of information shall be carried
out so as to protect all the data included in requests to
participate and tenders and that the content of requests to
participate and tenders could be examined after expiry of term
for their submission.
(5) During the time period from the day of submission of the
requests to participate or tenders until the moment of opening
thereof, the concession procedure commission shall not provide
information on the existence of other requests to participate or
tenders. The concession procedure commission shall not provide
information on the evaluation process during the evaluation of
requests to participate and tenders until the publication of the
results.
(6) The concession procedure commission shall ensure
confidentiality of the submitted information in accordance with
the laws and regulations in the field of information
publicity.
(7) The concession procedure commission shall ensure free and
direct electronic access to the concession procedure documents
and all additional required documents in the profile of the
purchaser, and also a possibility for a tenderer to become
acquainted on site with the additional concession procedure
documents to which free and direct electronic access cannot be
ensured due to technical reasons or due to the information
included therein, or for the purpose of protection of commercial
interests, starting from the moment of the announcement of the
relevant concession procedure. If a tenderer requests to issue
the concession procedure documents in printed form, the
concession procedure commission shall issue them within three
working days after receipt of the request for these documents,
provided that the request for documents has been submitted in due
time before the expiry of term for the submission of requests to
participate or tenders. The concession procedure commission may
request a payment for the issue of the concession procedure
documents in printed form which does not exceed the costs of
copying and sending of documents.
(8) If a tenderer has requested additional information on the
requirements included in the concession procedure documents in
due time, the concession procedure commission shall provide it
within five working days, but not later than six days before
expiry of the term for the submission of requests to participate
or tenders. The concession procedure commission shall send
additional information to the tenderer which has asked the
question, and shall concurrently publish this information in the
buyer profile where the concession procedure documents are
available, also indicating the question asked.
[20 April 2017]
Section 19. Requirements for the
Receipt and Sending of Electronic Documents
(1) The concession procedure commission shall provide for
electronic submission of requests to participate and tenders,
except for when this may not be ensured due to technical reasons,
due to the information included in the requests to participate or
tenders, or for the purpose of protection of commercial
interests. For the receipt of requests to participate and
tenders, the concession procedure commission shall select
electronic information systems which may be used free of charge
and are intended for electronic receipt of requests to
participate and tenders.
(2) When using electronic information systems by which
requests to participate and tenders are received, the following
rules shall be complied with:
1) all interested tenderers have access to the information on
specifications for the electronic submission, encryption, and
time-stamping of requests to participate and tenders;
2) a system-integrated signature tool is used, ensuring the
validation of the identity of the signatory of electronic
document, or an electronic signature which conforms to the laws
and regulations regarding the status of electronic documents and
electronic signature;
3) the date and time when requests to participate and tenders
are to be submitted may be precisely defined;
4) the concession procedure commission ensures that no-one has
access to information submitted prior to the end of the specified
term;
5) only authorised persons may set or change the time for
opening the received documents;
6) during the different stages of the concession procedure
access to the documents submitted, or to a part thereof, shall be
possible only after activities performed simultaneously by
authorised persons;
7) the submitted documents may be accessed only on a specific
date after activities performed simultaneously by authorised
persons;
8) the submitted and opened documents remain accessible only
to those authorised persons to whom such access has been
granted;
9) it is possible to discover that the prohibition referred to
in Clauses 4, 5, 6, 7, and 8 of this Paragraph has been
infringed.
(3) The Cabinet shall determine the requirements and standards
for the systems which are used for the submission of requests to
participate and tenders.
(4) If necessary, the concession procedure commission may
request that special equipment and technologies which are not
generally accessible are used for the submission of requests to
participate and tenders, provided that it offers such alternative
possibilities of access:
1) in an unlimited and full amount, free of charge, direct
electronic access to special equipment and technologies from the
day of publication of the concession notice. The concession
notice shall indicate the website address where the relevant
technologies and equipment may be accessed;
2) it ensures that the tenderers which do not have access to
the relevant technologies and equipment or are not able to
acquire them within the relevant time periods (assuming that the
relevant tenderer is not at fault for the lack of access) might
access the concession procedure by exercising a temporary right
of access which is available online free of charge;
3) it supports an alternative data channel for electronic
submission of tenders.
(5) When submitting a request to participate or tender
electronically, a tenderer is entitled to sign all documents as
one set with one secure electronic signature. If a request to
participate or tender may be submitted electronically, the
concession procedure commission is not entitled to request the
tenderer to also submit a written request to participate or
tender in addition to the electronic request to participate or
tender.
[20 April 2017 / See Paragraph 30 of Transitional
Provisions]
Section 20. Notices, their Forms
(1) The Cabinet shall determine the content of the notices
referred to in Section 38, Section 53, Paragraphs one and two,
Section 53.1, Section 53.2, Section
62.1, and Section 63, Paragraph seven of this Law. The
notice forms shall be determined by the annex to Commission
Implementing Regulation (EU) 2019/1780 of 23 September 2019
establishing standard forms for the publication of notices in the
field of public procurement and repealing Implementing Regulation
(EU) 2015/1986 (eForms).
(2) The concession procedure commission or the public partner
shall prepare and publish in the publication management system
the notice referred to in Paragraph one of this Section.
(3) The concession procedure commission or the public partner
shall send the notice referred to in Paragraph one of this
Section (except for the notice referred to in Section
53.2 of this Law) in the publication management system
to the Publications Office of the European Union for publication
in the Official Journal of the European Union if the estimated
contract price is equal to or exceeds the contract price
thresholds specified by the Cabinet. The notice is published on
the website of the Procurement Monitoring Bureau after receipt of
the confirmation that the notice has been published in the
Official Journal of the European Union or 48 hours after receipt
of the confirmation from the Publications Office of the European
Union that the notice has been received.
[5 October 2023]
Section 21. Documentation of the
Concession Procedure
(1) The concession procedure commission shall ensure
documentation of the concession procedure and each stage
thereof.
(2) The decision on the initiation of the concession
procedure, financial and economic calculations, opinions of the
competent authorities, minutes of the concession procedure
commission, the regulations, requests to participate after their
official opening, the final report of the concession procedure
commission, other concession procedure documents, except for the
tenders submitted by tenderers, shall be generally accessible
information within the scope and in accordance with the
procedures laid down in this Law.
(3) The representative of the public partner or the concession
procedure commission shall provide the information referred to in
Paragraph two of this Section within three working days after
receipt of a request.
Section 22. Storage of Concession
Procedure Documents
(1) The representative of the public partner shall store all
the original copies of the documents referred to in Section 21,
Paragraph two of this Law, and also original copies of the
tenders submitted by the tenderers for 10 years after expiry of a
concession contract.
(2) If the concession procedure is terminated or suspended in
accordance with the procedures laid down in this Law, the
representative of the public partner shall store the relevant
original copies of the documents referred to in Section 21,
Paragraph two of this Law, and also original copies of the
tenders submitted by tenderers for five years after the
concession procedure commission has taken the decision to
terminate or suspend the relevant concession procedure.
(3) If the decision of the concession procedure commission
referred to in Paragraph two of this Section to terminate or
suspend the relevant concession procedure is appealed in
accordance with the procedures laid down in this Law, the
representative of the public partner shall store the original
copies of the documents referred to in Section 21, Paragraph two
of this Law, and also original copies of the tenders submitted by
the tenderers for five years after entry into effect of the court
ruling.
(4) The period for the storage of the minutes of the complaint
examination commission and the information obtained during the
examination of a complaint shall be 10 years.
Section 23. Confidentiality
(1) The concession procedure commission may determine
conditions for the protection of the information that is
transmitted to tenderers together with technical specifications,
and also determine such conditions during the subsequent
concession procedure.
(2) When notifying of the conclusion of a concession contract
and informing the tenderers, the concession procedure commission
is not entitled to disclose information which has been
transferred thereto by other tenderers as a trade secret or
confidential information.
(3) If a tenderer, when providing the information requested in
this Law, considers that it is confidential or a trade secret,
the tenderer shall particularly specify it.
[20 April 2017]
Chapter V. Concession Procedure
Commission
Section 24. Establishment of the
Concession Procedure Commission
(1) The concession procedure commission shall be established
by the representative of the public partner. The concession
procedure commission shall consist of persons on whom an
administrative penalty - a prohibition to exercise the rights - a
prohibition to hold offices the duties of which include taking of
decisions in the field of public procurements and public-private
partnership or the conclusion of procurement contracts, framework
agreements, partnership procurement contracts, or concession
contracts, has not been imposed for offences in the field of
public procurement and public-private partnership, or the
enforcement of such penalty has ended. A representative of the
public partner shall, before establishment of the concession
procedure commission or inclusion of a new member in the
concession procedure commission, obtain the abovementioned
information on the person from the publication management
system.
(2) When establishing the concession procedure commission, the
representative of the public partner shall ensure that it would
be competent in the field for the conclusion of the concession
contract.
(3) When fulfilling its obligations, the concession procedure
commission is entitled to invite experts or competent persons in
the field of public-private partnership that are not members of
the commission.
(4) The concession procedure commission shall consist of at
least five members.
[20 April 2017; 5 December 2019 / The new wording of
Paragraph one shall come into force on 1 July 2020. See Paragraph
33 of Transitional Provisions]
Section 25. Basic Operating
Principles of the Concession Procedure Commission
(1) The person preparing the concession procedure documents
(official or employee of the public partner or of the
representative of the public partner), the members of the
concession procedure commission, the secretary of the concession
procedure commission, and the experts shall not represent the
interests of the tenderer, including they shall not have any
direct or indirect financial, economic, or other personal
interest which may affect the objectivity and independence of the
person in relation to the particular concession procedure, and
also they may not be associated with the tenderer. Within the
meaning of this Paragraph, the person preparing the concession
procedure documents (official or employee of the public partner
or of the representative of the public partner), the member of
the concession procedure commission, the secretary of the
concession procedure commission, and the expert are associated
with the tenderer if he or she is the following to the
tenderer:
1) the current or former employee, official, shareholder,
stockholder, proctor, or member of a legal person which is the
tenderer or subcontractor thereof and if this relation with the
legal person has ended within the last 24 months;
2) the father, mother, grandmother, grandfather, child,
grandchild, adoptee, adopter, brother, sister, half-brother,
half-sister, or spouse of a shareholder, stockholder, or member
who owns at least 10 per cent of the capital shares, proctor or
official of the legal person which is the tenderer or
subcontractor thereof (hereinafter - the relative);
3) the relative of a natural person who is the tenderer or
subcontractor thereof;
4) the current or former beneficial owner of a legal person
which is the tenderer and if this link to the legal person has
ended within the last 24 months;
5) a relative of the beneficial owner of a legal person which
is the tenderer.
(2) Relation of the person preparing the concession procedure
documents (official or employee of the public partner or of the
representative of the public partner), members of the concession
procedure commission, the secretary of the concession procedure
commission, and experts with the tenderer shall also refer to the
cases when the tenderer is an association of persons the members
of which are natural or legal persons with whom the person
preparing the concession procedure documents (official or
employee of the public partner or of the representative of the
public partner), the member of the commission, the secretary of
the concession procedure commission, or the expert has the
relation referred to in Paragraph one, Clause 1, 2, 3, 4, or 5 of
this Section.
(3) The person preparing the concession procedure documents
(official or employee of the public partner or of the
representative of the public partner), members of the concession
procedure commission, the secretary of the concession procedure
commission, and experts shall sign a certification that there are
no such circumstances due to which it might be regarded that they
are interested in selecting or activities of a particular
tenderer or that they are associated with them within the meaning
of Paragraph one of this Section and that they shall not disclose
the information obtained during the concession procedure which
may not be disclosed in accordance with laws and regulations.
[20 April 2017; 5 May 2022]
Section 26. Operation of the
Concession Procedure Commission
(1) The concession procedure commission shall ensure
development of the concession procedure documents, record the
course of the concession procedure and shall be responsible for
the process of the procedure thereof.
(2) The concession procedure commission shall evaluate
tenderers, tenders and other documents submitted thereby in
accordance with this Law, the concession procedure documents, and
also other laws and regulations. The decision of the concession
procedure commission shall be binding on the representative of
the public partner when concluding a concession contract.
(3) The chairperson of the concession procedure commission
shall organise and conduct its work, determine the place, time,
and agenda of the commission meetings, call and chair the
commission meetings, and also ensure signing of the declaration
referred to in Section 25, Paragraph three of this Law.
(4) The chairperson of the concession procedure commission
shall be appointed by the representative of the public
partner.
(5) The representative of the public partner may also appoint
a deputy chairperson of the concession procedure commission who
shall fulfil duties of the chairperson during lasting absence of
the chairperson (e.g. illness, vacation and business trip) or
upon assignment of the chairperson.
[20 April 2017]
Section 27. Procedures for the
Taking of Decisions of the Concession Procedure Commission
(1) The concession procedure commission shall take decisions
at meetings.
(2) The concession procedure commission shall have a quorum if
at least two thirds, but not less than three members of the
members of the commission, are present at the meeting. The number
of the members of the commission shall be determined by rounding
up the obtained result.
(3) The concession procedure commission shall take decisions
with a simple majority of votes. In the event of a tied vote of
the members of the commission, the chairperson of the commission
shall have the casting vote. The member of the commission may not
abstain from taking the decision.
[20 April 2017]
Chapter VI Complaint Examination
Commission
Section 28. Complaint Examination
Commission
(1) The complaint examination commission established by the
Procurement Monitoring Bureau and consisting of three members
shall examine complaints regarding infringements of the
concession procedure. Members of the complaint examination
commission shall be officials of the Procurement Monitoring
Bureau. The chairperson of the complaint examination commission
must meet the criteria referred to in Paragraph two of this
Section, and at least one more member of the commission shall
have an academic or a second level higher vocational education in
law. In order to examine complaints, the Procurement Monitoring
Bureau may invite a procurement specialist or expert.
(2) The complaint examination commission shall be chaired by
the chairperson who meets the following criteria:
1) he or she has an academic or a second level higher
vocational education in law or management or economics;
2) he or she has at least one year work experience in the
examination of complaints regarding infringements of the
procurement procedure and knowledge of public-private
partnership.
(3) A person who has previously provided consultations
regarding the concession procedure referred to in a complaint or
is interested in being awarded a concession contract, or is
connected the submitter of the complaint or another tenderer, may
not be a member of the complaint examination commission,
specialist or expert. Prior to examination of the complaint, all
members of the commission, the specialist and expert shall sign a
respective certification. Within the meaning of this Section, a
member of the complaint examination commission, specialist or
expert is connected to the submitter of the complaint or another
tenderer, if he or she is:
1) the father, mother, grandmother, grandfather, child,
grandchild, adoptee, adopter, brother, sister, half-brother,
half-sister or spouse of the owner or official of the legal
person - submitter of the complaint or another tenderer;
2) the father, mother, grandmother, grandfather, child,
grandchild, adoptee, adopter, brother, sister, half-brother,
half-sister or spouse of the natural person - submitter of the
complaint or another tenderer;
3) the current or former employee, official or owner of the
legal person - submitter of the complaint or another tenderer -
who has terminated an employment relationship or an ownership
relationship with the submitter of the complaint or another
tenderer within the time period which is shorter than 24 months,
or is the father, mother, grandmother, grandfather, child,
grandchild, adoptee, adopter, brother, sister, half-brother,
half-sister, or spouse of the abovementioned persons.
(4) The complaint examination commission shall take decisions
by voting. When taking a decision, members of the commission
shall be independent and subjected only to the law. A specialist
and an expert shall participate in meetings of the complaint
examination commission without the right to vote and express an
independent professional opinion to the commission on the facts
established during the examination of the complaint or provide a
statement regarding questions asked by the commission.
[20 April 2017]
Section 29. Submission of a
Complaint
(1) A person who is or has been interested in being awarded a
concession contract, or who is qualifying for concession contract
award and who, in relation to the specific concession procedure
to which this Law applies, believes that his or her rights have
been infringed upon or infringement of these rights is possible,
and it may be caused by a potential infringement of the legal
acts of the European Union or other laws and regulations, is
entitled to submit a complaint regarding the provisions for the
selection of tenderers, technical specifications, and other
requirements which relate to the specific concession procedure,
or regarding the activities of the public partner, representative
of the public partner or concession procedure commission during
the course of the concession procedure. Within the meaning of
this Chapter, the procedures for the selection of tenderers
referred to in Section 17, Paragraph seven of this Law shall also
be considered the concession procedure.
(2) A complaint regarding the infringements referred to in
Paragraph one of this Section (except for the cases referred to
in Paragraph three of this Section) may be submitted to the
Procurement Monitoring Bureau until the conclusion of a
concession contract in the following time periods:
1) within 10 days after the day when the information referred
to in Section 36, Paragraph four, Section 43, Paragraph one,
Section 45, Paragraph one or Section 53, Paragraph three of this
Law has been sent to the relevant person in electronic form,
using secure electronic signature or attaching a scanned document
to the electronic mail message, or by fax or handed over in
person;
2) within 15 days after the day when the information referred
to in Section 36, Paragraph four, Section 43, Paragraph one,
Section 45, Paragraph one or Section 53, Paragraph three of this
Law has been sent to the relevant person by post;
3) within 10 days after the day when the notice referred to in
Section 53.1, Paragraph one of this Law has been
published on the website of the Procurement Monitoring Bureau or
in the Official Journal of the European Union.
(3) A complaint regarding the requirements included in the
concession procedure documents may be submitted in the following
time periods:
1) at least seven days prior to the expiry of the term for the
submission of tenders - in relation to the requirements laid down
in the regulations for the procedure without the selection of
tenderers and the concession notice;
2) at least four working days prior to the expiry of the term
for the submission of requests to request - in relation to the
selection provisions referred to in the regulations or the
procedure with the selection of tenderers, the requirements
specified in the concession notice in the documents of the
competitive dialogue, and the concession notice;
3) at least four working days prior to the expiry of the term
for the submission of tenders - in relation to the requirements
included in an invitation to the procedure with the selection of
tenderers and competitive dialogue procedure;
4) at least two working days prior to the expiry of the term
for the submission of tenders - in relation to the requirements
included in the concession procedure documents in the case
referred to in Section 17, Paragraph seven of this Law.
(4) A complaint to the Procurement Monitoring Bureau may be
submitted, by delivering it in person or sending it by post, fax
or electronically, using secure electronic signature or attaching
a scanned document to the electronic mail message. A complaint
shall be deemed submitted to the Procurement Monitoring Bureau
within the term specified in Paragraphs two and three of this
Section if it has been received at the Procurement Monitoring
Bureau:
1) on the final day of the term at the latest, if sent by fax
or electronically, using a secure electronic signature or
attaching a scanned document to the electronic mail message;
2) on the final day of the term at the latest, within the
office hours of the Procurement Monitoring Bureau, if sent by
post or delivered in person.
(5) A complaint shall be submitted in writing and shall
include the following information:
1) the name and address of the submitter of the complaint;
2) the name and address of the public partner regarding which
the complaint has been submitted;
3) the title of the concession procedure and identification
number of the concession procedure;
4) the facts regarding which the complaint is being submitted,
indicating the infringement;
5) the legal basis for the complaint;
6) the claim of the submitter of the complaint.
(6) The Procurement Monitoring Bureau shall, within one
working day after the complaint has been received, post
information to this effect on its website, indicating the
submitter of the complaint, the public partner, the
representative of the public partner or the concession procedure
commission, and the concession procedure the lawfulness whereof
is contested by the submitter of the complaint, and also shall
inform the representative of the public partner regarding the
initiation of an administrative case, by sending a notice
regarding the received complaint and a copy of the complaint to
the fax number or electronic mail address indicated by the
representative of the public partner. The public partner shall
not conclude a concession contract until a decision of the
commission on the results of the examination of the complaint or
termination of the administrative case is received.
(7) If a complaint regarding the requirements prescribed by
regulations for the procedure without the selection of tenderers
or the concession notice, or the invitation to tender in the
procedure with the selection of tenderers has been submitted, the
concession procedure commission shall publish information in the
buyer profile on the cancellation of the date and time for the
opening of tenders, and shall not open the submitted tenders in
accordance with Section 49, Paragraph 1.1 of this
Law.
(8) If a complaint regarding the activities of the public
partner, the representative of the public partner or the
concession procedure commission in relation to the lawfulness of
the procurement procedure is submitted and a complaint regarding
the same concession procedure has already been submitted by
another submitter of the complaint but it has not it has not been
examined yet, such complaints may be combined and examined
together.
(9) The submitter of the complaint is entitled to revoke the
complaint submitted in writing, at any time, until the complaint
examination commission has not taken a decision on the relevant
complaint.
[20 April 2017; 5 October 2023]
Section 29.1 Leaving
Complaint Unexamined
(1) The Procurement Monitoring Bureau is entitled to leave a
complaint unexamined in any of the following cases:
1) the complaint does not conform to the requirements of
Section 29, Paragraph one, two, three or five of this Law;
2) a complaint has already been submitted and examined with
respect to a concession procedure for the same subject-matter and
on the same grounds;
3) the information included in the complaint is evidently
insufficient to satisfy the claim of the submitter of the
complaint, or the complaint is evidently inadmissible on its
merits;
4) in the case referred to in Section 29.2,
Paragraph four of this Law.
(2) The decision may be appealed to a court in accordance with
the procedures laid down in the Administrative Procedure Law.
Appeal of the decision shall not suspend the operation
thereof.
[20 April 2017]
Section 29.2 Deposit
(1) When submitting a complaint in accordance with the
procedures laid down in Section 29 of this Law, a deposit shall
be paid in or submitted.
(2) The submitter of the complaint is entitled to pay in the
deposit as the sum of money or submit it in the form of a bank
guarantee or insurance policy.
(3) The deposit shall comprise 0.5 per cent of the estimated
contract price, however not more than EUR 15 000. If it is not
possible to determine the estimated contract price or it is not
specified in the concession procedure documents, the deposit
shall amount to EUR 3400.
(4) Following the receipt of the complaint the Procurement
Monitoring Bureau shall, within one working day, verify the fact
of receipt or submission of a deposit payment. Where the payment
of the deposit is not received or submitted, the Procurement
Monitoring Bureau is entitled to leave a complaint
unexamined.
(5) The Procurement Monitoring Bureau shall repay the deposit
payment or return the deposit to the submitter of the complaint
within five working days after:
1) the day of revocation of the complaint, if the submitter of
the complaint has revoked the complaint prior to the examination
thereof in the commission, on the basis of the fact that the
public partner, the representative of the public partner, or the
concession procedure commission has eliminated the infringements
specified in the complaint;
2) the receipt of the true copy of the court judgment, if the
court by the final judgment assigns to repay the paid-in deposit
payment to the submitter of the complaint;
3) the day when the decision on leaving the complaint
unexamined has been communicated;
4) the day when the decision the decision to prohibit to
conclude the concession contract or to cancel the decision of the
public partner, the representative of the public partner, or the
concession procedure commission to terminate the concession
procedure has come into effect.
(6) This Section shall not be applicable if the complaint
contests the lawfulness of the termination of the concession
procedure or the requirements prescribed by the concession
procedure.
(7) The procedures for the payment or submission and repayment
or return of the deposit shall be determined by the Cabinet.
[20 April 2017]
Section 30. Examination of a
Complaint
(1) The complaint examination commission shall examine a
complaint within one month after receipt thereof in the
Procurement Monitoring Bureau. If due to objective reasons it is
not possible to comply with this time limit, the complaint
examination commission may extend it by notifying the submitter
of the complaint, the tenderer whose tender has been sin
accordance with the specified tender selection criteria, the
representative of the public partner, and the concession
procedure commission (hereinafter in this Section - the
participants).
(2) Upon examining a complaint regarding infringements of the
concession procedure, the complaint examination commission may,
by a decision thereof:
1) allow to conclude a concession contract and to leave the
requirements specified in the concession procedure documents or
the decision of the public partner, the representative of the
public partner or concession procedure commission in effect, if
the complaint is not justified or is justified, however, the
infringements established by the complaint examination commission
cannot affect the decision on awarding of the concession
contract;
2) prohibit concluding the concession contract, if the
requirements of Section 43, Section 45, Paragraph one or Section
53, Paragraph three of this Law have not been complied with;
3) prohibit concluding the concession contract and cancel the
requirements specified in the concession procedure documents or
the decision of the public partner, the representative of the
public partner, or the concession procedure commission in full or
any part thereof, if the complaint is justified and the
infringements established by the complaint examination commission
can affect the decision on awarding of the concession
contract;
4) leave the decision of the public partner, the
representative of the public partner, or concession procedure
commission on termination or suspension of the concession
procedure in effect, if the complaint is not justified;
5) cancel the decision of the public partner, the
representative of the public partner, or the concession procedure
commission on termination or suspension of the concession
procedure, if the complaint is justified.
(3) In the cases referred to in Paragraph two, Clauses 2, 3,
and 5 of this Section, the complaint examination commission may
decide on measures for the elimination of the established
infringements. The complaint examination commission may assign
the public partner or the representative of the public partner to
suspend the concession procedure only when the infringements of
the concession procedure committed by the public partner, the
representative of the public partner, or the concessions
procedure commission cannot be eliminated otherwise.
(4) If during the examination of a complaint the complaint
examination commission establishes that the complaint should be
left unexamined, it may take the decision on termination of the
administrative case. If the submitter of the complaint withdraws
the complaint, the relevant administrative proceedings shall be
considered terminated.
(5) The Procurement Monitoring Bureau shall invite the
participants to the complaint examination meeting by publishing
an invitation on its website at least three working days in
advance. The invitation shall be considered notified on the next
working day of publication thereof on the website of the
Procurement Monitoring Bureau. If the electronic mail address to
which the invitation should be sent has been notified by the
participants to the Procurement Monitoring Bureau, the
Procurement Monitoring Bureau shall send the information on the
complaint examination meeting to the participants also by
electronic mail not later than on the day when the invitation is
published on the website of the Procurement Monitoring
Bureau.
(6) The complaint examination commission shall hear the
opinion of all participants. After hearing the participants, it
shall continue work without the presence of the participants.
(7) The complaint examination commission shall evaluate a
complaint on the basis of the facts referred to by the relevant
submitter of the complaint and the participants, explanations,
and an opinion or a statement of an expert. If the participants
have not arrived to the complaint examination meeting, the
complaint examination commission shall examine the complaint on
the basis of the facts available thereto. The complaint
examination commission shall take a decision and, within three
working days after taking of this decision, prepare and post it
on the website of the Procurement Monitoring Bureau. The decision
shall be considered notified on the next working day of
publication thereof on the website of the Procurement Monitoring
Bureau.
(8) The complaint examination commission shall indicate the
following information in its decision:
1) the justification for the establishment of the
commission;
2) the members of the commission, experts, and competent
persons who have participated in the complaint examination
meeting commission;
3) the submitter of the complaint, the representative of the
public partner, the members of the concession procedure
commission, and the representatives of other participants who
have participated in the complaint examination meeting;
31) the identification number of the concession
procedure regarding which the complaint has been submitted;
4) facts regarding which the complaint has been submitted, and
the claim of the submitter of the complaint;
5) the most important arguments of the submitter of the
complaint and the representative of the public partner;
6) the justification of the decision;
7) the legal norms applied;
8) the obligation imposed on the representative of the public
partner or the concession procedure commission and the term for
its fulfilment if the complaint examination commission takes the
decision on measures for the elimination of the established
infringements;
9) the prohibition or permission to conclude the concession
contract;
10) where and in what term this decision may be appealed.
(9) If the complaint examination commission has taken the
decision on the measures for the elimination of the established
infringements, the representative of the public partner, or the
concession procedure commission shall eliminate the infringements
and perform further activities referred to in this Law.
(10) The concession procedure commission shall send all
information on the elimination of the infringements established
by the complaint examination commission to the Procurement
Monitoring Bureau not later than on the day when the notice of
the concession procedure commission on the results of the
concession procedure is published in accordance with the
procedures laid down in Section 53 of this Law.
[25 August 2010; 20 April 2017]
Section 31. Appeal of the Decisions
of the Complaint Examination Commission
(1) The submitter of the complaint, the public partner, or the
tenderer whose tender is selected in accordance with the specific
tender selection criterion may appeal the decision of the
complaint examination commission to the District Administrative
Court in the procedures laid down in the Administrative Procedure
Law. The case shall be heard by the court in the composition of
three judges.
(2) A judgment of the District Administrative Court may be
appealed in accordance with cassation procedures in the
Department of Administrative Cases of the Senate of the Supreme
Court. Other court rulings may be appealed in accordance with the
Administrative Procedure Law.
(3) Appeal of the decision of the complaint examination
commission shall not suspend the validity thereof.
[25 August 2010 / See Paragraph 15 of Transitional
Provisions]
Chapter VI.1
Recognition of a Concession Contract as Invalid, Amending or
Repealing the Provisions of a Concession Contract or Reduction of
the Term of a Contract, and Procedures for the Compensation of
Losses
[25 August 2010]
Section 31.1 Submission
of a Complaint on Recognising a Concession Contract as Invalid,
on Amending or Repealing the Provisions Thereof or on the
Reduction of the Term of a Concession Contract, and Examination
of the Relevant Case
(1) A complaint on the recognition of a concession contract as
invalid, on amending or repealing the provisions thereof or
reduction of the term of a concession contract may be submitted
by the persons referred to in Section 29, Paragraph one of this
Law.
(2) The complaint shall be submitted to the District
Administrative Court which shall examine the case in the
composition of three judges. The examination of the application
and the case shall be subject to the norms of the Administrative
Procedure Law, inter alia, the norms regarding examination of the
contract governed by public law in the court, insofar as not
prescribed otherwise by this Law.
(3) A complaint in relation to the infringements referred to
in Section 31.2, Paragraph one of this Law may be
submitted within the following time periods:
1) within six months after the day when the concession
contract was concluded (except for the cases referred to in
Clause 2, Sub-clauses "a" and "b" of this Paragraph);
2) within 30 days after the day when:
a) the concession award notice which includes a justification
for the decision to award the concession contract without
publishing the concession notice has been published on the
website of the Procurement Monitoring Bureau or in the Official
Journal of the European Union;
b) the public partner or the representative of the public
partner has informed the relevant tenderer of the conclusion of
the concession contract, indicating the information referred to
in Section 53, Paragraph three, Clause 1 or 2 of this Law thereto
or indicating the reasons for rejecting the request to
participate submitted thereby.
(4) Concurrently with submission of an application or during
examination of a case, the applicant may, in the cases and in
accordance with the procedures laid down in the Administrative
Procedure Law, request that an interim measure is applied.
(5) A decision of the District Administrative Court may be
appealed in accordance with cassation procedures in the
Department of Administrative Cases of the Senate of the Supreme
Court.
(6) A claim for the recognition a concession contract as
invalid that is not justified with the circumstances referred to
in Section 31.2 of this Law shall be submitted to the
court of general jurisdiction in conformity with the procedures
laid down in the Civil Procedure Law.
[20 April 2017; 5 October 2023]
Section 31.2 Cases When a
Concession Contract may be Recognised as Invalid, the Provisions
Thereof may be Amended or Repealed or the Term of a Concession
Contract may be Reduced
(1) A court may recognise the concession contract as invalid,
amend or repeal the provisions thereof or reduce the term of the
concession contract in any of the following cases:
1) the concession contract has been concluded without applying
the concession procedures specified in Section 17, Paragraph one
of this Law or the procedures referred to in Section 17,
Paragraph seven of this Law if the public partner had to apply
it;
2) the concession contract has been concluded, by unjustly
awarding the concession contract without publishing the
concession notice on the website of the Procurement Monitoring
Bureau or in the Official Journal of the European Union, if the
contract price is equal to or higher than the contract price
thresholds specified by the Cabinet;
3) the concession contract has been concluded without
complying with the term laid down in Section 54 of this Law;
4) the concession contract has been concluded by violating the
prohibition specified in Section 29, Paragraph six of this Law to
conclude the concession contract.
(2) In the cases referred to in Paragraph one, Clause 1 or 2
of this Section, a concession contract shall not be recognised as
invalid, the provisions thereof shall not be amended or repealed,
the term of the concession contract shall not be reduced, even
though the law has been violated, if the following conditions are
met concurrently:
1) the public partner or the representative of the public
partner has published the notice referred to in Section
53.1, Paragraph one of this Law;
2) the concession contract has been concluded for at least 10
days and additionally one working day after the day when the
notice referred to in Section 53.1, Paragraph one of
this Law has been published on the website of the Procurement
Monitoring Bureau or in the Official Journal of the European
Union;
3) the prohibition to conclude a concession contract specified
in Section 29, Paragraph six of this Law has been complied
with.
[20 April 2017; 5 October 2023]
Section 31.3 Court
Judgment on a Concession Contract
(1) If a court establishes that the concession contract has
been concluded by infringing the norms of this Law and concludes
that the complaint should be satisfied, it shall, in compliance
with the conditions of this Law, select itself one of the
following types of judgments:
1) recognise the concession contract as invalid from the
moment of conclusion thereof;
2) amend or repeal the provisions of the concession contract.
When adopting such judgment, a court shall, in addition, reduce
the term of concession contract;
3) reduce the term of the concession contract.
(2) When giving a judgment, a court shall not be limited by
the subject-matter of the complaint indicated by the applicant
and the limits of the claim.
(3) Upon selecting the type of judgment referred to in of
Paragraph one, Clause 1 or 2 of this Section, a court shall
evaluate which one of them is sufficiently commensurate,
effective, and preventive in the particular case in order to
ensure that the public partner or the representative of the
public partner would not commit infringements of this Law in the
future. A court shall give the judgment referred to in Paragraph
one, Clause 3 of this Section only in cases laid down in
Paragraphs four and five of this Section.
(4) A court shall not give the judgment referred to in
Paragraph one, Clause 1 or 2 of this Section if it is essential
for the public interests to preserve the consequences caused by
the concession contract. Financial consequences (for example,
costs due to delay of performance, change of the contractor,
sanctions, or other legal liabilities) alone shall not be
considered a sufficient basis for not giving the judgment
referred to in Paragraph one, Clause 1 or 2 of this Section.
(5) If a concession contract has been concluded without
complying with the term specified in Section 54 of this Law or
violating the prohibition specified in Section 29, Paragraph six
of this Law to conclude a concession contract, and it is
established that the concession procedure until taking of the
decision on determination of the winner has been performed in
accordance with the requirements of this Law and the
abovementioned decision has not affected the chances of the
tenderer who has submitted an complaint to be awarded with the
procurement contract, the court shall give the judgment referred
to in Paragraph one, Clause 2 or 3 of this Section.
(6) A copy of the court judgment shall be sent to the
Procurement Monitoring Bureau, monitoring authority, and Ministry
of Finance.
[20 April 2017]
Section 31.4 Compensation
for Losses
(1) Losses caused within the scope of administrative
proceedings shall be compensated in accordance with the laws and
regulations governing the administrative procedure and the
procedures for compensation for losses caused by State
administration institutions. Cases on compensation for losses
shall be examined by the District Administrative Court under the
court proceedings in the composition of three judges.
(2) If compensation is requested concurrently with the claim
provided for in Section 31.1 of this Law, a court
shall take a decision thereon by examining the relevant complaint
and giving any of the judgments referred to in Section
31.3, Paragraph one of this Law. The burden of proof
regarding existence of such losses and the amount of compensation
shall lie with the applicant. Following the day when the judgment
enters into effect, the compensation for such losses may be
requested in accordance with the civil law procedures.
(3) Upon submitting a complaint to the Procurement Monitoring
Bureau in accordance with Section 29 of this Law, the
compensation for losses is not requested. Compensation for losses
caused by the public partner or the representative of the public
partner may be requested concurrently with submitting a complaint
to a court or addressing the public partner in accordance with
the procedures laid down in the laws and regulations governing
compensation for losses caused by State administration
institutions.
[20 April 2017]
Chapter VII General Issues for the
Conduct of the Concession Procedures
Section 32. Stages of the Concession
Procedures
[20 April 2017]
Section 33. Development of the
Regulations
(1) The concession procedure commission shall develop the
regulations of the relevant concession procedure in conformity
with the decision on the initiation of the public-private
partnership procedure. The abovementioned regulations shall be
approved by each representative of the public partner.
(2) If the procedure without the selection of tenderers is
applied to the concession procedure, the following information
shall be indicated in the regulations:
1) the name (company) of a public partner and representative
thereof, legal address and other required details;
2) the date, time, place, and procedures for submission and
opening of tenderers' tenders;
3) the requirements for the validity period of a tenderer's
tender, preparation and submission, form of the financial tender,
and also information on the language or languages in which the
tender is to be submitted;
4) the conditions for the elimination of tenderers in
accordance with Section 37 of this Law, and also the information
to be submitted that is necessary to evaluate a tenderer in
accordance with the requirements of the referred to Section;
5) the requirements for the possibilities of a tenderer to
perform professional activity, the requirements for economic and
financial standing of a tenderer, technical and professional
capabilities, and also the information to be submitted that is
necessary to evaluate a tenderer in accordance with the
abovementioned requirements;
6) justified and objective requirements for the subject-matter
of a concession contract, taking into account Paragraphs twelve,
thirteen, and fourteen of this Section and ensuring that the
abovementioned requirements provide equal possibilities to all
tenderers and do not cause unjustified restrictions on
competition;
7) the conditions for environmental protection (if such need
to be determined);
8) the conditions for social protection (if such need to be
determined);
9) the time period within which the concession procedure
commission plans to review the tenders;
10) tender evaluation criteria in accordance with Section 51
of this Law, and also a reference whether a tenderer is allowed
to submit variants of a tender;
11) the date, time, and manner by which the results of the
procedure without the selection of tenderers will be notified to
the tenderers;
12) the conditions according to which tenders shall be
considered non-conforming to the regulations;
13) the period within which, following the determination of
results, the final agreement with the winner of the procedure
without the selection of tenderers on the conclusion of the
concession contract shall be reached;
14) the provisions of the draft concession contract that may
not be amended during the agreement upon the concession
contract;
15) the means of communication whereby information shall be
exchanged between the concession procedure commission and the
tenderers;
16) other information provided for in this Law or considered
by the concession procedure commission as necessary to be
included in the regulations.
(3) If the procedure with the selection of tenderers is
applied to the concession procedure, the following information
shall be provided in the regulations in addition to the
information referred to in Paragraph two of this Section:
1) the time and place where a tenderer may submit a request on
readiness to participate in the procedure with the selection of
tenderers;
2) the list of documents and information to be submitted;
3) the common criteria a tenderer must meet so that it could
be invited to submit a tender in accordance with Section 40,
Paragraph two of this Law;
4) the date, time, place, and procedures by which the
concession procedure commission will open tenderers' tenders;
5) the period within which the concession procedure commission
plans to select tenderers;
6) the date, time, and manner in which the results of the
tenderer selection will be published;
7) the planned time schedule for implementing other stages of
the procedure with the selection of tenderers;
8) other information related to the tenderer selection.
(4) If the procedure with the selection of tenderers is
applied to the concession procedure, the regulations may include
the condition that the concession procedure commission preserves
the right to request that only a limited number of tenderers who
best meet the tenderer selection criteria may submit tenders. In
this case the number of tenderers may not be less than three.
(5) If the competitive dialogue is applied to the concession
procedure, the following information shall be determined in the
regulations in addition to the information referred to in
Paragraph two of this Section:
1) the time and place where a tenderer may submit a request on
readiness to participate in the competitive dialogue
procedure;
2) the list of documents and information to be submitted;
3) the common criteria a tenderer must meet so that the
tenderer could be invited to negotiations in accordance with
Section 40, Paragraph two of this Law;
4) the time period within which the concession procedure
commission plans to evaluate tenderers in order to invite them to
negotiations;
5) the needs and requirements of a public partner on which the
negotiations with tenderers will take place;
6) information on the time and place of commencing the
negotiations, and also the language planned to be used in
negotiations with tenderers;
7) the date and time when and manner in which the tenderers
will be invited to negotiations;
8) the stages of negotiations if it is planned that the
negotiations with tenderers will be held in stages;
9) the date and time when and manner in which tenderers will
be informed of the results of the negotiations;
10) the planned time schedule for implementing other stages of
the competitive dialogue procedure;
11) amount and assigning of awards or making of payments to
the participants of the negotiations, and also manner and terms
of presentation to the tenderers who have participated in the
negotiations referred to in Section 46 of this Law (if it is
planned that there will be awards or payments for the
participation in the negotiations);
12) other information on the course of the competitive
dialogue procedure.
(6) If the information referred to in Paragraph two of this
Section is not objectively compatible with the information
referred to in Paragraph three or five of this Section, only the
information referred to in Paragraph three or five of this
Section shall be included in the regulations.
(7) If the concession contract intends to provide aid for
commercial activity, the concession procedure commission shall
indicate the abovementioned information in the regulations
concurrently specifying the procedures for providing such aid and
the applicable control arrangements of aid for commercial
activity.
(8) If it is planned to attract financing of the European
Union Funds for the performance of a concession contract, the
concession procedure commission shall indicate the abovementioned
information in the regulations simultaneously laying down the
procedure for using such financing.
(9) The regulations shall indicate whether a tenderer with
whom the concession contract is planned to be concluded may
establish a special purpose entity for the performance of the
contract or the tenderer is obliged to establish it.
(10) [20 April 2017]
(11) The draft concession contract shall be attached to the
regulations. The draft concession contract need not be attached
to the regulations in case of the competitive dialogue
procedure.
(12) Technical specifications shall be included in the
concession procedure documents, and they shall determine the
requirements for construction work and services. The requirements
may refer to a specific production or provision process or a
method of the requested construction work or services, or a
specific process in another stage of life cycle thereof even if
such factors are not directly related to the nature of the
construction work or services, provided that they are related to
the subject-matter of the concession contract and are
proportionate to the value and objectives of the concession
contract.
(13) Technical specifications shall include technical
descriptions which may contain such requirements of the public
partner for construction work and services as the level of
quality, environmental protection requirements, regulations for
the mitigation of climate change (reduction in emissions of
greenhouse gases), and adaptation to climate change, energy
efficiency, construction requirements (also requirements for the
accessibility of a structure or service to people with
disabilities), requirements for conformity assessment and
implementation, safety rules or measurements, terminology,
symbols, testing rules and methods, designations and marking or
user instructions. If possible, the amount of construction work
shall be determined according to the building design and included
in the list of the amount of construction work. Construction
costs shall be determined in accordance with the procedures
stipulated by the Cabinet. If it is not decisive for the
existence of the subject-matter of the concession contract,
technical specifications shall not indicate a specific origin, a
special process which characterises only products or services of
a specific tenderer, a brand, patents or specific types of
products that create advantages or a reason for the rejection of
certain tenderers or products. In exceptional cases, such
reference may be included, if a sufficiently precise and clear
description of the subject matter of the concession contract
cannot be drawn up. In such case the reference shall be used
together with the words "or equivalent".
(14) The submitted tender shall not be rejected for the reason
that the tendered construction work or services fail to conform
to the standards or technical specifications indicated in the
concession procedure documents, if a tenderer can prove, using
any appropriate means, that his or her tender is equivalent and
meets the requirements specified in the technical
specification.
[20 April 2017]
Section 33.1
Subcontractors
(1) In order to ascertain that a tenderer will be able to
perform a concession contract, the concession procedure
commission is entitled to request the tenderer to indicate in the
tender those lots of the concession contract which it will
transfer to subcontractors for performance, and also all
envisaged subcontractors.
(2) The concession procedure commission shall request the
tenderer to indicate in the tender all subcontractors the value
of the construction work to be performed or services to be
provided by which is at least EUR 10 000 and the lot of the
concession contract to be transferred for the performance to each
such subcontractor.
(3) The total value of the construction work to be performed
or the services to be provided by a subcontractor shall be
determined by taking into account the value of the construction
work to be performed or the services to be provided by the
subcontractor and all companies related thereto within the scope
of the relevant concession contract. Within the meaning of this
Section, a related company shall be considered a capital company
in which, in accordance with the laws and regulations governing
the status of group of companies, a subcontractor has a decisive
influence or which has a decisive influence in the subcontractor,
or a capital company in which another capital company has a
decisive influence that concurrently has a decisive influence in
the relevant subcontractor.
(4) In the case of a services concession contract, if the
services are provided in the object of the public partner, and in
the case of a works concession contract the concession procedure
commission shall request that after awarding of the concession
contract and not later than at the moment of commencing the
performance of the concession contract the private partner
submits a list of the subcontractors (if such are planned to be
involved) involved in the performance of construction work or
provision of services by specifying the name, contact information
of the subcontractor, and the person with representation rights
thereof, insofar as such information is known. Subcontractors of
subcontractors of the private partner shall also be indicated in
the list. During performance of the concession contract, the
private partner shall notify of any changes in the abovementioned
information, and also supplement the list with the information on
a subcontractor which is later involved in the performance of
construction work or the provision of services.
(5) The concession procedure commission may provide in the
concession procedure documents that in case of a works concession
contract, upon a request of a subcontractor, payments for the
services provided or construction work performed by this
subcontractor to the private partner who has accepted them, and
the payment term of which is past due, if the public partner has
failed to pay all the contract price due to the private partner,
shall, on the basis of an invoice submitted by the subcontractor,
be transferred by the public partner directly to the
subcontractor, and the next payment to the private partner shall
be reduced by the relevant amount. Prior to the payment of the
invoice of the subcontractor, the public partner shall inform the
private partner of such request and allow him or her to express
an opinion on the validity of the request. The procedures for
making payments and exchanging information with the private
partner and subcontractors thereof shall be provided for by the
concession procedure commission in the concession contract.
(6) The procedures laid down in Paragraphs one and five of
this Section shall not affect the issues regarding responsibility
of the private partner for the performance of the concession
contract.
[20 April 2017; 5 May 2022]
Section 34. Opinion of the
Monitoring Authority on the Regulations and the Draft Concession
Contract
(1) The concession procedure commission shall send the
regulations and the draft concession contract attached thereto to
the monitoring authority in order to receive an opinion on the
conformity of risk allocation between the public partner and the
private partner to the concession contract.
(2) If it is indicated in the opinion of the monitoring
authority that it arises from the information included in the
regulations and the draft concession contract that the risk
allocation between the public partner and the private partner
conforms to the concession contract, the concession procedure
commission shall publish the concession notice referred to in
Section 38 of this Law or an advance informative notice used for
announcing the procurement of social and other special
services.
(3) If the opinion of the monitoring authority indicates that
the information included the regulations and the draft concession
contract shows that the risk allocation between the public
partner and the private partner does not conform to the
concession contract, the concession procedure commission shall
inform the representative of the public partner thereof and
develop new regulations and draft concession contract by taking
into account the written instructions of the representative of
the public partner, or take the decision to suspend the
concession procedure.
(4) If the concession procedure commission prepares new
regulations and draft concession contract based on the
instructions provided by the representative of the public
partner, the commission shall send them to the monitoring
authority in accordance with Paragraph one of this Section.
[20 April 2017; 5 October 2023]
Section 35. Making Amendments to the
Regulations
(1) The concession procedure commission may make amendments to
the regulations if they do not substantially change the
requirements included in the regulations. Substantial changes in
the requirements included in the regulations shall be, in
particular, considered the changes which allow submission of
different tenders or participation or selection of other
tenderers in the concession procedure, or as a result of which
the determined risk allocation between the public partner and the
private partner is changed, or the content of the tender, the
proposed contract price and conditions are changed, or it becomes
impossible to prepare the tender within the specified term, or
other significant requirements included in the regulations.
(2) Amendments to the regulations shall be approved by the
representative of the public partner.
(3) Amendments to the regulations may be made only if the time
period for submitting the relevant request to participate or
tender referred to in Section 39 of this Law has not expired.
(4) The concession procedure commission shall send the
amendments to the regulations to the monitoring authority in
order to receive an opinion in accordance with the procedures
laid down in Section 34 of this Law.
(5) If the concession procedure commission has made amendments
to the regulations or other concession procedure documents, it
shall post the information on amendments to the buyer profile
where such documents are available not later than on the day when
the concession notice is republished.
[20 April 2017; 5 October 2023]
Section 36. Termination or
Suspension of the Concession Procedure
(1) The concession procedure commission shall take the
decision to terminate the relevant concession procedure if:
1) as a result of this concession procedure requests to
participate or tenders have not been submitted;
2) tenders which are not in conformity with the concession
contract and fail to conform to the requirements specified in the
concession procedure documents without significant amendments
have been submitted;
3) requests to participate have been submitted by tenderers
who do not meet the qualification requirements and are to be
excluded from the concession procedure;
4) an agreement on the concession contract has not been
reached with any of the tenderers in the negotiations on the
draft concession contract in accordance with the procedures laid
down in Section 52 of this Law.
(2) If the concession procedure commission has taken the
decision to terminate the concession procedure in accordance with
Paragraph one, Clause 1, 2, or 3 of this Law, the public partner
may apply the negotiated procedure in accordance with Section 17,
Paragraph six of this Law.
(3) The concession procedure commission is entitled to suspend
the concession procedure and not to conclude a concession
contract, if there is an objective justification and consent of
each public partner has been received. If the concession
procedure is suspended, it may not be resumed.
(4) If the concession procedure is terminated or suspended,
the concession procedure commission shall, within three working
days after taking of the decision, concurrently inform all
tenderers of all the reasons due to which the concession
procedure is terminated or suspended. The concession procedure
commission shall inform all tenderers of the term by which the
person, taking into consideration Section 29, Paragraph two,
Clause 1 or 2 of this Law, may submit a complaint on violations
of the concession procedure to the Procurement Monitoring Bureau.
Within the meaning of this Section it shall be considered that
the information is delivered to all tenderers concurrently if the
relevant information is sent or delivered to them on the same
day.
(5) The concession procedure commission shall send information
on termination or suspension of the concession procedure by post,
fax or electronically by using a secure electronic signature or
attaching a scanned document to the electronic mail, or deliver
in person. The concession procedure commission shall retain proof
of the date and manner of sending or delivery of the
information.
[20 April 2017]
Section 36.1 European
Single Procurement Document
(1) The concession procedure commission shall accept the
European Single Procurement Document as a preliminary evidence of
the conformity with the requirements for the selection of
tenderers specified in the concession notice or concession
procedure documents. If a tenderer has chosen to submit the
European Single Procurement Document, the tenderer shall, in
order to certify his or her conformity with the requirements for
the selection of tenderers specified in the concession notice or
concession procedure documents, also submit this document for
each person on whose capacities the tenderer relies upon to
certify that the qualification thereof conforms to the
requirements specified in the concession notice or concession
procedure documents, and for the subcontractor indicated by the
tenderer the value of the construction work to be performed or
services to be provided by which is at least EUR 10 000. An
association of persons shall submit an separate European Single
Procurement Document for each participant thereof.
(2) A tenderer may submit the European Single Procurement
Document which has already been submitted in another concession
or procurement procedure, if it certifies that the information
included therein is correct.
(3) The concession procedure commission is entitled to ask the
tenderer at any stage of the concession procedure to submits all
or part of the documents certifying compliance thereof with the
requirements for the selection of tenderers specified in the
concession notice or concession procedure documents. The
concession procedure commission shall not request such documents
and information which is at its disposal or available in public
databases.
(4) Sample forms of the European Single Procurement Document
shall be determined by the Commission Implementing Regulation
(EU) 2016/7 of 5 January 2016 establishing the standard form for
the European Single Procurement Document.
[20 April 2017; 5 May 2022]
Section 36.2 General
Provisions in Relation to a Tenderer
(1) The concession procedure commission shall not reject a
tenderer, if it does not have a specific legal status in
accordance with the laws and regulations of Latvia, but this
tenderer is entitled to perform construction work or provide
services in accordance with the laws and regulations of the
European Union Member State where it has been founded.
(2) The concession procedure commission may request that the
given name, surname, and professional qualification of the
employee responsible for the performance of a concession contract
is indicated in the request to participate or tender of a legal
person.
(3) The concession procedure commission is not entitled to
require for associations of persons to get organised in a
specific legal status, so that they, as a tenderer, would submit
a request for participation in the concession procedure, or a
tender. It may be requested in the concession procedure documents
that an association of persons in relation to which a decision
has been taken to conclude a concession contract gets organised
according to a specific legal status, if it is necessary for the
successful performance of the provisions of the concession
contract.
(4) It may be specified in the concession procedure documents
how associations of persons shall fulfil the requirements
regarding economic and financial standing or technical and
professional capacity. The requirements must be commensurate, and
they shall be determined on the basis of objective reasons. The
concession procedure commission may determine different,
commensurate, and objectively justified conditions for
associations of persons regarding performance of a concession
contract.
[20 April 2017]
Section 37. Provisions for the
Exclusion of a Tenderer
(1) The concession procedure commission shall exclude a
tenderer from further participation in the concession procedure
in accordance with the provisions of this Section.
(2) The reasons for the exclusion of a tenderer shall be as
follows:
1) the tenderer or a person who is a member of the executive
board or supervisory board, a person with representation rights,
a proctor of the tenderer, or a person who is authorised to
represent the tenderer in activities related to a branch has been
found guilty of any of the following criminal offences by such
prosecutor's penal order or a court judgment that has entered
into effect and has become incontestable and unappealable, or a
coercive measure has been applied thereto:
a) establishment or leading of a criminal organisation,
involvement in such organisation or in an organised group within
such organisation, or in another criminal formation, or
participation in criminal offences committed by such
organisation;
b) accepting bribes, giving of bribes, misappropriation of a
bribe, intermediation in bribery, unlawful participation in
property transactions, unauthorised receipt of benefits,
commercial bribery, unlawful requesting, receiving, or giving of
benefit, trading with influence;
c) fraud, misappropriation, or money laundering;
d) terrorism, financing of terrorism, establishment or
organisation of a terrorist group, travelling for terrorism
purposes, justification of terrorism, invitation to terrorism,
terrorism threats, or recruitment or training of a person for the
committing of acts of terrorism;
e) human trafficking;
f) evasion of tax payments or payments equivalent thereto;
2) the tenderer has, on the last day of the term for the
submission of requests to participate and tenders or on the day
when the decision is taken to possibly award the concession
contract, outstanding liabilities in the field of taxes
(including State social insurance) in Latvia in accordance with
the law On Taxes and Fees or in the country of registration or
permanent residence thereof in accordance with the laws and
regulations of the respective foreign country;
3) the tenderer is a legal person or an association of persons
registered in an offshore or the owner or holder of more than 25
per cent of capital shares (stocks) of the tenderer registered in
Latvia is a legal person or association of persons registered in
an offshore;
4) insolvency proceedings have been declared for the tenderer,
the economic activity of the tenderer has been suspended, or the
tenderer is being liquidated;
5) the tenderer, by such a decision of the competent authority
or a court judgment which has entered into effect and become
incontestable and unappealable, has been found guilty of or is
liable for the payment of a fine for the violation of competition
law manifested as a horizontal cartel agreement, except for when
the relevant authority, upon establishing violation of the
competition law, has given the tenderer immunity from a fine or
reduced the fine for cooperation under the leniency
programme;
6) the tenderer, by such a decision of the competent
authority, a court judgment, or prosecutor's penal order which
has entered into effect and has become incontestable and
unappealable has been found guilty of and punished for a
violation which manifests as:
a) employment of one or several persons if they do not have
the necessary work permit or they are not entitled to reside in a
European Union Member State;
b) employment of a person without concluding a written
employment contract, failing to submit, within the time period
specified in the laws and regulations regarding taxes, in
relation to such person an informative declaration which should
be submitted on persons who commence employment;
7) the concession procedure commission has sufficiently
plausible indications at its disposal to conclude that the
tenderer has entered into an agreement with other economic
operators aimed at hindrance, restriction, or distortion of
competition;
8) the concession procedure commission has specified in the
concession notice or in the concession procedure documents and
can demonstrate by any appropriate means that the tenderer has
violated the laws and regulations of Latvia and legal acts of the
European Union in the field of environmental, social, or labour
law, the collective agreement, the general agreement, or the
requirements laid down in the international conventions referred
to in Annex 3 to this Law;
9) the concession procedure commission has specified in the
concession notice or in the concession procedure documents and
can demonstrate by any appropriate means that the tenderer has
committed a fundamental breach in its professional activities due
to which the performance in good faith of the concession contract
may reasonably be called into question;
10) the tenderer, a participant or member thereof (if the
tenderer is an association of economic operators or a
partnership) as a contracting party or as a participant or member
of the contracting party (if the contracting party has been an
association of economic operators or a partnership) has failed to
ensure the performance of a procurement contract, a framework
agreement, or a public-private partnership contract concluded
with the contracting authority, the public service provider, the
public partner, or the representative of the public partner and
therefore the contracting authority, the public service provider,
the public partner, or the representative of the public partner
has unilaterally terminated the procurement contract, the
framework agreement, or the public-private partnership
contract;
11) the person preparing the concession procedure documents
(an official or employee of the public partner or of the
representative of the public partner), a member of the concession
procedure commission, the secretary of the concession procedure
commission, or an expert is related to the tenderer within the
meaning of Section 25, Paragraphs one and two of this Law, or is
interested in the selection of any tenderer, and the public
partner or the representative of the public partner has no
possibility to prevent this situation by less restrictive
measures with respect to the tenderer;
12) the tenderer has attempted to unlawfully influence the
public partner or the representative thereof or a decision of the
concession procedure commission or a member of the concession
procedure commission in relation to the concession procedure or
has attempted to obtain confidential information that would
provide unjustified advantage in the concession procedure, or has
provided misleading information that could significantly
influence the decision on further participation of the tenderer
in the concession procedure or award of the concession
contract;
13) the tenderer has provided false information to certify the
conformity with the provisions of this Section or the
qualification requirements for tenderers laid down in accordance
with this Law, or has failed to submit the requested
information;
14) in relation to concessions in the fields of defence and
security, an opinion has been received from a State security
institution stating that the conclusion of a concession contract
with a tenderer may cause threats to national security.
(3) The reasons for exclusion referred to in Paragraph two of
this Section shall also apply to any of the following
persons:
1) a member of a partnership if the tenderer is a
partnership;
2) the person specified by the tenderer on whose capacities
the tenderer relies upon to certify that the qualification
thereof conforms to the requirements laid down in the concession
notice or in the concession procedure documents;
3) the subcontractor indicated by the tenderer the value of
the construction work to be performed or services to be provided
by which is at least EUR 10 000;
4) Paragraph two, Clauses 1, 2, and 3 of this Section - to
persons who have a decisive influence in the tenderer on the
basis of participation within the meaning of the laws and
regulations regarding groups of companies;
5) Paragraph two, Clauses 1, 2, and 11 of this Section - to
the beneficial owner of the tenderer.
(4) The concession procedure commission shall, however, not
exclude a tenderer from further participation in the concession
procedure in any of the following cases:
1) the tenderer has ensured reliability in accordance with the
procedures laid down in Section 37.1 of this Law;
2) in the case referred to in Paragraph two, Clauses 1, 5, and
6 of this Section, three years have elapsed from the date on
which a court judgment, a prosecutor's penal order, or a decision
taken by another competent authority has become incontestable and
unappealable until the date on which the request to participate
or tender is submitted;
3) in the case referred to in Paragraph two, Clause 7 of this
Section, three years have elapsed in relation to a decision of
the competent authority in the field of competition from the date
of entry into effect thereof and, in the case referred to in
Clauses 8 and 9, from the date of establishing the respective
violation until the date of submission of the request to
participate or tender;
4) in the case referred to in Paragraph two, Clause 10 of this
Section, three years have elapsed from the date on which the
contracting authority, the public service provider, the public
partner, or the representative of the public partner unilaterally
terminated the procurement contract, the general agreement, or
the public-private partnership contract until the date of
submission of the request to participate or tender.
(5) The concession procedure commission shall exclude a
tenderer from further participation in the concession procedure
due to the reasons referred to in Paragraph two, Clause 1, 2, 3,
4, 5, or 6 of this Section on the basis of the information
obtained thereby in accordance with the following procedures:
1) using the information system stipulated by the Cabinet in
relation to a person registered or permanently residing in
Latvia, and also, on the basis of the reasons for exclusion
referred to in Paragraph two, Clauses 1, 2, 5, and 6 of this
Section, in relation to a person registered or permanently
residing in a foreign country, ensuring compliance with the
following procedures and without the necessity to request the
consent of the respective persons:
a) information on the reason for exclusion referred to in
Paragraph two, Clauses 1, 5, and 6 of this Section shall be
obtained by the concession procedure commission, and also by the
tenderer from the Information Centre of the Ministry of the
Interior (Punishment Register);
b) information on the person referred to in Paragraph two,
Clause 1 of this Section (a member of the executive board or
supervisory board, a person with representation rights, a
proctor, or a person who is authorised to represent the tenderer
in activities related to a branch) and the person referred to in
Paragraph three, Clause 5 of this Section shall be obtained by
the concession procedure commission from the Enterprise
Register;
c) the information on the reason for exclusion referred to in
Paragraph two, Clause 2 of this Section shall be obtained by the
concession procedure commission, and also by the tenderer from
the State Revenue Service and local governments of Latvia. The
concession procedure commission shall take into account the
information posted in the information system stipulated by the
Cabinet on the date of the last data update of the public
database of tax debtors of the State Revenue Service and the
Administration System of Immovable Property Tax. If the
concession procedure commission establishes that, in accordance
with the information posted in the information system stipulated
by the Cabinet on the date of the last data update of the public
database of tax debtors of the State Revenue Service or in the
Administration System of Immovable Property Tax, the tenderer or
the person referred to in Paragraph three of this Section has, on
the last day of the term for the submission of requests to
participate and tenders or on the day when the decision is taken
to possibly award the concession contract, outstanding
liabilities in the field of taxes, the concession procedure
commission shall specify a time period, i.e. three working days
following the day of sending the request for information, for the
submission of the evidence referred to in Paragraph six of this
Section that the tenderer or the person referred to in Paragraph
three of this Section did not have any outstanding liabilities in
the field of taxes on the respective date;
d) the information on the reason for exclusion referred to in
Paragraph two, Clauses 3 and 4 of this Section shall be obtained
by the concession procedure commission, and also by the tenderer
relating to itself from the Enterprise Register. If the data in
respect of the reason for exclusion referred to in Paragraph two,
Clause 3 of this Section are not available in the information
system stipulated by the Cabinet, the concession procedure
commission shall request a confirmation that the respective
reason for exclusion does not apply to the tenderer or the person
referred to in Paragraph three of this Section, specifying a time
period for the submission of certification - at least 10 days
following the day of sending the request for information;
e) the information on the person registered or permanently
residing in a foreign country, and also on the persons referred
to in Paragraph three, Clause 4 of this Section shall be obtained
by the concession procedure commission from the tenderer;
2) upon request of the concession procedure commission and
within the time period stipulated thereby which is not less than
10 working days following the day of sending the request for
information, the tenderer shall submit the following in order to
certify that the reasons for exclusion referred to in Paragraph
two of this Section do not apply to the person registered or
permanently residing in a foreign country, including a tenderer
registered in Latvia, a member of the executive board or
supervisory board, a person with representation rights, a
proctor, or a person who is authorised to represent the tenderer
in activities related to a branch of the person referred to in
Paragraph three of this Section and who has permanent residence
in a foreign country:
a) in relation to the reasons for exclusion referred to in
Paragraph two, Clauses 1, 2, 4, 5, and 6 of this Section, a
statement or another document issued by the competent authority
of the respective foreign country certifying the absence of the
reason for exclusion. The relevant statement of the competent
authority of the foreign country may be replaced by an
explanation if, in accordance with the legal acts of the country
of registration of the tenderer or of the person referred to in
Paragraph three of this Section, the person to whom the reasons
for exclusion referred to in Paragraph two, Clause 1 of this
Section apply may not be a member of the executive board or
supervisory board, a person with representation rights, a
proctor, or a person who is authorised to represent the tenderer
in activities related to a branch;
b) in relation to the reason for exclusion referred to in
Paragraph two, Clause 3 of this Section, a statement that the
reason for exclusion does not apply to the tenderer or the person
referred to in Paragraph three of this Section. A document
certifying the country of registration of each person shall be
appended to the certification;
c) if in the respective foreign country the statement or other
documents of the competent authority referred to in Sub-clause
"a" of this Clause are not issued or sufficient to certify that
the reasons for exclusion referred to in Paragraph two of this
Section do not apply to the tenderer or the person referred to in
Paragraph three of this Section, the respective statement or
other documents may be replaced by an oath or, if the legal acts
of the respective country do not provide for taking of an oath,
in relation to the reason for exclusion referred to in Paragraph
two, Clause 1, 2, or 4 of this Section - the certification of the
tenderer itself or another person referred to in Paragraph two or
three of this Section to the competent executive institution or
judicial institution, a sworn notary, or a competent organisation
in the relevant sector in the country of registration or
permanent residence thereof, but in relation to the reason for
exclusion referred to in Paragraph two, Clause 5 or 6 of this
Section - the certification of the tenderer itself or the person
referred to in Paragraph three of this Section to the concession
procedure commission.
(6) The evidence referred to in Paragraph five, Clause 1,
Sub-clause "c" of this Section which may be used to prove that
the tenderer or the person referred to in Paragraph three of this
Section did not have any outstanding liabilities in the field of
taxes on the respective date shall be the following:
1) a statement from the electronic declaration system of the
State Revenue Service;
2) a statement issued by a local government that the relevant
person did not have debts of the immovable property tax;
3) other objective evidence of the absence of tax debts or the
tax compliance.
(7) The concession procedure commission may exclude a tenderer
due to the reason for exclusion referred to in Paragraph two,
Clause 7 of this Section in any of the following cases:
1) information on such a decision of the competent authority
in the field of competition is available whereby the tenderer has
been found guilty of violating the competition law manifesting as
a horizontal cartel agreement, except for the case when the
relevant authority, upon establishing violation of the
competition law, has given the tenderer immunity from a fine or
reduced the fine for cooperation under of the leniency
programme;
2) examination of the request to participate, tender, or other
available information has revealed indications which might
suggest the existence of an agreement aimed at hindrance,
restriction, or distortion of competition in the particular
concession procedure, and an opinion of the Competition Council
has been received that the indications established by the
concession procedure commission might suggest the existence of a
respective agreement. The Competition Council shall give its
opinion within 10 working days from the date of receipt of the
relevant request from the concession procedure commission.
(8) The concession procedure commission may exclude a tenderer
due to the reason for exclusion referred to in Paragraph two,
Clauses 8, 9, and 10 of this Section if there is such sufficient
and objective information at the disposal thereof which proves
the existence of the respective reason for exclusion. A tenderer
registered in Latvia may be excluded due the reasons referred to
in Paragraph two, Clauses 8 and 9 of this Section if the
concession procedure commission is in possession of a decision of
the competent authority whereby the respective violation is
established. If the concession procedure commission, having
assessed the information at the disposal thereof, has reasonable
doubts as to the sufficiency of the evidence or the violations
committed by the respective person are of a minor nature, the
concession procedure commission shall not exclude the tenderer
from further participation in the concession procedure.
(9) The concession procedure commission shall exclude a
tenderer from further participation in the concession procedure
if it establishes the reasons for exclusion referred to in
Paragraph two, Clause 11, 12, 13, or 14 of this Section.
(10) The concession procedure commission shall verify the
reasons for exclusion of tenderers specified in Paragraph two of
this Section:
1) in the procedure without the selection of tenderers - in
relation to each tenderer which should be awarded a concession
contract in conformity with other requirements specified in the
concession notice and in the concession procedure documents and
the criteria chosen for tender evaluation;
2) in the procedure with the selection of tenderers and a
competitive dialogue - in relation to each tenderer which meets
the requirements laid down in the concession notice and in the
concession procedure documents and should be invited to submit a
tender. If it is provided for in the concession procedure
documents, the examination may be carried out in respect of the
tenderer which, according to the other requirements specified in
the concession notice and the concession procedure documents and
the chosen tender selection criteria, should be awarded the
concession contract or, where a reduction in the number of
tenderers is applied, the abovementioned examination shall be
carried out before the reduction in the number of tenderers. The
concession procedure commission shall perform an examination of
the reason for exclusion referred to in Paragraph two, Clause 2
of this Section in respect of each tenderer which should be
awarded a concession contract in conformity with other
requirements laid down in the concession notice and in the
concession procedure documents and the chosen tender selection
criteria;
3) in the case referred to in Section 17, Paragraph seven of
this Law (if the concession documents provide for the application
of the reasons for exclusion referred to in Paragraph two of this
Section) and in a negotiated procedure - in respect of each
tenderer which should be awarded a concession contract;
4) in a negotiated procedure in the case referred to in
Section 17, Paragraph six, Clause 3 of this Law, if only all
those tenderers are invited to participate in negotiations which
have not been excluded in the relevant concession procedure
announced previously in accordance with the provisions of this
Section and which conform to the qualification requirements
brought forward. If the negotiated procedure is applied after
termination of the competition without selection of tenderers,
the verification shall be carried out in respect of each tenderer
which has submitted a tender and has been invited to the
negotiated procedure. This examination shall be carried out
before the commencement of negotiations.
(11) The Cabinet shall determine:
1) the information system in which the verification referred
to in Paragraph five, Clause 1 of this Section is to be carried
out, and also the procedures for maintaining and using such
system;
2) the purpose and scope of processing the information to be
verified and referred to in Paragraph five, Clause 1, Sub-clause
"a" of this Section, and also the laws and regulations and
sections thereof which correspond to the reasons for exclusion of
tenderers specified in Paragraph two of this Section and for the
violations and criminal offences provided wherein the
verification referred to in Paragraph five, Clause 1, Sub-clause
"a" of this Section is to be made;
3) the procedures by which the information system referred to
in Clause 1 of this Paragraph receives and processes information
from the information systems maintained by the institutions
referred to in Paragraph five of this Section;
4) the scope of the information to be verified and referred to
in Paragraph five, Clause 1 of this Section in the information
system referred to in Clause 1 of this Paragraph in respect of
the persons registered or permanently residing abroad.
[5 May 2022]
Section 37.1 Ensuring of
Reliability
(1) If the concession procedure commission establishes that a
tenderer should be excluded from further participation in the
concession procedure due to the reasons for exclusion referred to
in Section 37, Paragraph two, Clauses 1, 4, 5, 6, 7, 8, 9, 10,
11, 12, 13, and 14 of this Law, including in relation to the
person referred to in Section 37, Paragraph three, Clauses 1, 4,
and 5 of this Law, and the exemptions referred to in Section 37,
Paragraph four, Clauses 2, 3, 4, 5, and 6 of this Law are not
applicable, the concession procedure commission shall grant the
tenderer the right to submit an explanation and evidence
certifying reliability of the tenderer in accordance with the
provisions of this Section within a time period that is not less
than 10 days following the day of sending the request for
information.
(2) In order to certify reliability, a tenderer shall provide
an explanation and evidence of the compensation for the damage
caused or of the agreement concluded on the compensation for the
damage caused, the cooperation with the investigating
institutions and the technical, organisational, or personnel
management measures taken in order to prove its reliability and
to prevent recurrence of the same and similar cases in the
future.
(3) The concession procedure commission shall evaluate the
information provided in the explanation, the measures taken by a
tenderer or a member of a partnership (if the tenderer is a
partnership) and evidence thereof, taking into account the
severity of the offence and the specific circumstances. The
concession procedure commission may request opinions of the
competent authorities in the field of the relevant offence on the
fact whether the measures taken by the tenderer are sufficient to
restore reliability and to prevent the same and similar cases in
the future. An opinion shall not be requested if it is available
to the concession procedure commission or if the tenderer has
submitted an opinion of the competent authority in the field of
the relevant offence on sufficiency of the measures taken by the
specific tenderer to restore reliability and to prevent the same
and similar cases in the future.
(4) If the concession procedure commission considers the
information provided in the explanation and the measures taken to
be sufficient to restore reliability and to prevent the same and
similar cases in the future, it shall decide that the respective
tenderer has ensured reliability and shall not be excluded from
further participation in the concession procedure in accordance
with Section 37, Paragraph four, Clause 1 of this Law.
(5) If a tenderer should be excluded from further
participation in the concession procedure because the reasons for
exclusion referred to in Section 37, Paragraph two of this
Section apply to the person referred to in Section 37, Paragraph
three, Clauses 2 and 3 of this Law, reliability shall be ensured
by the tenderer replacing the person referred to in Section 37,
Paragraph three, Clauses 2 and 3 of this Law with a person who
meets the requirements laid down in the concession notice or in
the concession procedure documents and the reasons for exclusion
referred to in Section 37, Paragraph two of this Law are not
applicable thereto.
(6) If a tenderer fails to submit the documents referred to in
Paragraph one of this Section within the time period specified in
Paragraph two of this Section or if the concession procedure
commission does not consider the submitted explanations and
evidence as sufficient for the restoration of reliability and
prevention of the same and similar cases in the future, or if the
tenderer fails to replace the persons referred to in Section 37,
Paragraph three, Clauses 2 and 3 of this Law in accordance with
Paragraph five of this Section, the concession procedure
commission shall take the decision to exclude the tenderer from
further participation in the concession procedure.
(7) The possibility provided for in this Section to ensure the
restoration of reliability in accordance with Paragraphs two and
three of this Section shall not apply to a person in respect of
whom a final and unappealable judgment has entered into effect in
the country of registration or permanent residence thereof,
excluding the tenderer from further participation in the
procurement or concession procedures, and the time period
specified in the judgment for excluding the tenderer from further
participation in the procurement or concession procedure has not
expired.
[5 May 2022]
Section 37.2 Conformity
for the Performance of Professional Activities
(1) The concession procedure commission may request evidence
that the relevant tenderer is registered, licensed, or certified
in accordance with the requirements of the laws and regulations
of the country of registration or permanent residence.
(2) In the case of a service concession contract, insofar as
the private partner must be authorised or a member of an
organisation so that it could provide the specific service in the
country of registration or permanent residence, the concession
procedure commission may request evidence of such authorisation
or participation.
(3) [30 April 2020]
(4) The concession procedure commission shall determine the
requirements for the minimum period since registration,
licensing, authorisation of the private partner or his or her
becoming of a member of a specific organisation.
[20 April 2017; 30 April 2020]
Section 37.3 Economic and
Financial Situation
(1) The concession procedure commission may specify the
requirements for the economic and financial capacity of a
tenderer that are needed for the performance of a concession
contract. Such requirements may refer to the following:
1) the annual minimum financial turnover of the tenderer,
including in the subject-matter of a specific concession
contract;
2) the financial indicators of the tenderer;
3) the professional risk insurance.
(2) If the subject-matter of a concession contract is divided
into lots, the annual minimum financial turnover of a tenderer
may be determined regarding groups of lots, if the concession
contract is to be awarded in several lots to be implemented
concurrently.
(3) A tenderer may mainly certify the conformity of its
economic and financial situation with the specified requirements
by submitting the following documents:
1) certifications of a credit institution or, if necessary,
evidence of the relevant professional risk insurance company;
2) a financial statement or an extract from a financial
report, if the financial report constitutes publicly available
information in accordance with the laws and regulations of the
country of registration of the applicant;
3) a certification regarding the total net turnover thereof
or, if necessary, the turnover which relates to the field of a
specific concession contract, but not more than regarding three
previous reporting years, insofar as the information on such
turnover is available, taking into account the time of
establishment or commencement of activities of the tenderer.
(4) When laying down the requirements for financial indicators
of a tenderer, the concession procedure commission shall clearly
indicate objective and non-discriminatory methods and criteria in
the concession procedure documents which will be used for the
determination of financial indicators.
(5) A tenderer may rely on economic and financial capacities
of other persons, if it is necessary for the performance of the
relevant concession contract, regardless of the legal nature of
mutual relations thereof. In such case the tenderer shall prove
that it will have the necessary resources at its disposal by
submitting, for example, a certification of such persons or an
agreement on cooperation for the performance of the relevant
concession contract. The concession procedure commission may
request that the tenderer and the person on whose economic and
financial capacities the tenderer relies are jointly liable for
the performance of the concession contract.
(6) The concession notice (if the relevant notice form
provides for such information) or an invitation to submit a
tender and concession procedure documents shall determine the
documents which the tenderer submits to certify its compliance
with the specified requirements. A tenderer which is not able to
submit the required documents due to justified reasons is
entitled to certify its economic or financial situation by any
other documents if the concession procedure commission considers
them as appropriate.
(7) The concession procedure commission may specify the
minimum level of conformity with the requirements referred to in
this Section.
[20 April 2017; 30 April 2020]
Section 37.4 Technical
and Professional Capacity
(1) The concession procedure commission may specify
requirements for the technical and professional capacity of a
tenderer necessary for the performance of a concession contract.
Such requirements may refer to the personnel involved in the
performance of the concession contract, and experience and
technical resources of the tenderer.
(2) Technical and professional capacity of a tenderer may be
certified by the following based on the nature, quantity, level
of significance and use of construction work or service:
1) the information on the executed construction work by
attaching statements and references on the execution of the most
important work in the course of not more than five preceding
years, except for when the concession procedure commission has
specified a longer term for the certification of experience for
the purpose of promotion of competition;
2) the information on the most significant services provided
in the course of not more than three preceding years, indicating
amounts, time, and recipients (public or private persons). If it
is necessary for the promotion of competition, the concession
procedure commission may specify a longer term for the
certification of experience;
3) the information on technical personnel or authorities which
are responsible for the quality control, but if construction work
are to be executed, on the technical personnel or authorities
which will be involved in the execution of construction work;
4) the description of the technical equipment and resources
used by the tenderer for ensuring quality, and also the
description of training and research equipment of the
tenderer;
5) the information on the management and route control systems
of the supply chain which the tenderer will use for the
performance of the concession contract;
6) where the services to be provided are of a complex nature
or the services are intended for a special purpose, the
inspection carried out by the public partner or on its behalf by
a competent public body of the country of the service provider.
The abovementioned inspection shall relate to the technical
capacity of the service provider and, where necessary, the
quality control measures it will take;
7) the documents certifying education or professional
qualification of personnel of the performer of construction work
or the service provider, if education or professional
qualification of the personnel is not provided for as one of the
criteria for tender evaluation;
8) the description of the measures which the tenderer is
planning to take for the purposes of meeting the environmental
protection requirements when performing the concession
contract;
9) information on the average number of employees of the
performer of construction work and the service provided per year,
and the number of the managerial staff during the last three
years;
10) information on the tools, installations, and technical
equipment available to the performer of construction work and the
service provider for the performance of the concession
contract;
11) indication of the lot of the concession contract which the
tenderer intends to transfer to subcontractors.
(3) A tenderer may rely on technical and professional
capacities of other persons, if it is necessary for the
performance of the relevant concession contract regardless of the
legal nature of mutual relations thereof. In such case the
tenderer shall prove that it will have the necessary resources at
its disposal by submitting, for example, a certification of such
persons or an agreement on transfer of the necessary resources to
the tenderer. In order to certify the professional experience or
the availability of the personnel meeting the requirements of the
concession procedure commission of the tenderer, it may rely on
the capacities of other persons only if such persons are to
perform the construction work or to provide services for the
execution whereof the relevant capacities are necessary.
(4) The concession procedure commission may request that
especially important tasks are carried out by the tenderer itself
or a member of an association of persons.
(5) The concession notice (if the relevant notice form
provides for such information) or an invitation to submit a
tender and concession procedure documents shall determine the
documents which the tenderer submits to certify its compliance
with the specified requirements.
(6) The concession procedure commission may specify the
minimum level of conformity with the requirements referred to in
this Section.
[20 April 2017; 30 April 2020]
Section 37.5 Quality
Assurance Standards
(1) If the concession procedure commission requires a
certificate of an independent authority regarding conformity of a
tenderer with the specific quality assurance standards, including
provision of access for persons with disability, it shall refer
to the quality assurance systems which have been approved by
authorities accredited in accordance with the procedures laid
down in laws and regulations according to the European standards.
The concession procedure commission shall recognise a certificate
issued by an authority accredited in accordance with the
procedures laid down in laws and regulations of another European
Union Member State. If it has been impossible for the tenderer to
obtain such certificates by the day of submission of a request to
participate or tender for reasons beyond the control of the
tenderer, it shall submit other evidence that equal quality
assurance measures have been taken, and prove that the offered
quality assurance measures conform to the specified
requirements.
(2) [30 April 2020]
(3) Paragraph one of this Section shall only apply if the
estimated contract price of a concession contract is equal to or
exceeds the threshold of contract price specified by the
Cabinet.
[20 April 2017; 30 April 2020]
Section 37.6
Environmental Management Standards
(1) If the concession procedure commission requests a
certificate of an independent authority regarding conformity of a
tenderer with the environmental management standards or
environmental management systems, it shall refer to the
Eco-Management and Audit Scheme (EMAS) or other systems which
have been recognised in accordance with Section 45 of Regulation
(EC) No 1221/2009 of the European Parliament and of the Council
of 25 November 2009 on the voluntary participation by
organisations in a Community eco-management and audit scheme
(EMAS), repealing Regulation (EC) No 761/2001 and Commission
Decisions 2001/681/EC and 2006/193/EC, or other environmental
management standards that conform to the European or
international environmental management system standards and have
been approved by institutions accredited in accordance with the
procedures laid down in laws and regulations. The concession
procedure commission shall recognise a certificate issued by an
authority accredited in accordance with the procedures laid down
in laws and regulations of another European Union Member State.
If it has been impossible for the tenderer to obtain such
certificates by the day of submission of a request to participate
or tender for reasons beyond the control of the tenderer, it
shall submit other evidence of equal measures which should be
ensured according to the environmental management system or
standard required by the concession procedure commission.
(2) [30 April 2020]
(3) Paragraph one of this Section shall only apply if the
estimated contract price of a concession contract is equal to or
exceeds the threshold of contract price specified by the
Cabinet.
[20 April 2017; 30 April 2020]
Section 38. Concession Notice and an
Advance Informative Notice Used for Announcing the Procurement of
Social and Other Special Services
(1) If the public partner wishes to conclude a concession
contract and the concession procedure commission applies the
procedure without the selection of tenderers, procedure with the
selection of tenderers, or a competitive dialogue, it shall
publish the concession notice.
(2) If the public partner wishes to conclude a concession
contract for the services referred to in Annex 2 to this Law, the
concession procedure commission shall publish an advance
informative notice used for announcing the procurement of social
and other special services. The concession procedure commission
is entitled not to publish the abovementioned notice, if a
negotiated procedure is applied in accordance with the cases
referred to in Section 17, Paragraph six of this Law.
(3) If the concession procedure commission makes the
amendments referred to in Section 35 of this Law to the
concession procedure documents or extends the terms specified for
the submission of requests to participate or tenders by
tenderers, it shall republish the concession notice.
[20 April 2017; 5 October 2023]
Section 39. Time Periods for the
Submission of the Tenderers' Requests to Participate and
Tenders
(1) When determining the terms for the submission of requests
to participate or tenders, the concession procedure commission
shall take into account the level of complexity of the potential
concession contract and the period necessary for the preparation
of requests to participate or tenders, and also the minimum time
limits for the submission of requests to participate and tenders
specified in this Section.
(2) If the procedure without the selection of tenderers or a
negotiated procedure is applied to the concession procedure, the
term for the submission of tenders shall be not less than 30 days
after the day when the concession notice is published on the
website of the Procurement Monitoring Bureau or when an
invitation to negotiations is sent to the selected tenderers. If
the estimated contract price is equal to or exceeds the threshold
of contract price specified by the Cabinet, the term for the
submission of tenders shall be not less than 30 days after the
day when the concession notice is sent to the Publications Office
of the European Union for publication in the Official Journal of
the European Union.
(3) If the procedure with the selection of tenderers or a
competitive dialogue is applied to the concession procedure, the
term for the submission of requests to participate shall be at
least 30 days starting from the day when the concession notice is
published on the website of the Procurement Monitoring Bureau. If
the estimated contract price is equal to or exceeds the threshold
of contract price specified by the Cabinet, the term for the
submission of requests to participate shall be not less than 30
days after the day when the concession notice is sent to the
Publications Office of the European Union for publication in the
Official Journal of the European Union.
(4) If the procedure with the selection of tenderers is
applied to the concession procedure, the term for the submission
of tenderers' tenders shall be not less than 22 days after the
day when an invitation to submit tenders is sent to
tenderers.
(5) If a competitive dialogue is applied to the concession
procedure, the term for the submission of tenders by tenderers
who have participated in the negotiations shall be not less than
22 days after the day when an invitation to submit tenders is
sent to tenderers. The concession procedure commission shall
agree on the term for the submission of tenders with all the
selected tenderers which have participated in the negotiations
but, if it is not possible to agree, the term shall be not less
than 22 days after the day when an invitation to submit tenders
is sent to the tenderers.
(6) If the public partner enters into a concession contract
for the services referred to in Annex 2 to this Law, the term for
expression of interest shall be not less than 35 days after the
day when the advance informative notice used for announcing the
procurement of social and other special services is published on
the website of the Procurement Monitoring Bureau. If the
estimated contract price is equal to or exceeds the threshold of
contract price specified by the Cabinet, the term for expression
of interest shall be not less than 35 days after the day when the
advance informative notice used for announcing the procurement of
social and other special services is sent to the Publications
Office of the European Union for publication in the Official
Journal of the European Union.
(7) The concession procedure commission may reduce the term
for the submission of tenders by tenderers by five days, if
tenders are intended to be submitted electronically in accordance
with Section 19, Paragraph one of this Law.
(8) The concession procedure commission shall specify a longer
term for the submission of tenders than the minimum terms for the
submission of requests to participate and tenders specified in
this Section, if a request to participate or a tender may only be
prepared after visiting the place of the performance of the
concession contract indicated by the concession procedure
commission, or after becoming acquainted with the additional
documents which have been specified in the concession procedure
documents, at the place indicated by the concession procedure
commission. The term for the submission of requests to
participate and tenders shall be such that the tenderers
concerned would be able to become acquainted with all the
information necessary for the preparation of a request to
participate and a tender.
(9) The concession procedure commission may make amendments to
the concession procedure documents, provided that the amended
provisions do not allow submission of different tenders or
participation or selection of other tenderers in the concession
procedure. If amendments are made to the concession procedure
documents, the term for the submission of requests to participate
or tenders shall be extended according to the significance of
information or changes, so that the tenderers could become
acquainted with all the information necessary for the preparation
of a request to participate or a tender. The minimum term for the
submission of requests to participate or tenders may not be less
than half of the original term for the submission of requests to
participate or tenders after the day when the concession notice
is republished on the website of the Procurement Monitoring
Bureau or sent to the Publications Office of the European Union
for publication in the Official Journal of the European
Union.
(10) If the concession procedure commission makes amendments
to the invitation to submit tenders, the minimum term for the
submission of tenders shall, after the day when the concession
procedure commission has informed all the tenderers which have
been invited to submit tenders, be at least half of the term
specified initially for the submission of tenders.
(11) The concession procedure commission is entitled to extend
the specified terms for the submission of requests to participate
and tenders by republishing the concession notice. If the
estimated contract price of a concession contract is equal to or
exceeds the threshold of contract price specified by the Cabinet,
the minimum time period by which the concession procedure
commission is entitled to extend the term for the submission of
requests to participate or tenders shall be seven days. Such
extension of terms shall not be considered an amendment to the
concession procedure documents within the meaning of Paragraph
nine of this Section.
(12) If the concession procedure commission uses an electronic
information system for the submission of requests to participate
or tenders and such malfunctions of the system are established
due to which it has not been possible to submit tenders or
applications for at least two hours within the last 24 hours in
total or for 10 minutes within the last four hours until expiry
of the term for the submission of tenders or requests to
participate, the holder of the system shall, after restoration of
the operation of the system, postpone the term for the submission
of tenders or requests to participate by one working day. On the
day of restoring the operation of the system, a notice of the
malfunctions of the system shall be posted thereon, indicating
the concession procedures the terms of which have been postponed.
Such postponement of the terms shall not be considered an
amendment to the procurement or procurement procedure documents
or extension of the term for the submission of the tenders and
requests to participate within the meaning of Paragraph nine of
this Section.
[20 April 2017; 5 October 2023]
Chapter VIII Selection of
Tenderers
Section 40. Submission of Tenderers'
Requests to Participate
(1) If in accordance with the regulations the procedure with
the selection of tenderers is organised, a tenderer shall submit
a written request to participate in the tenderer selection
procedure to the concession procedure commission within the time
period specified in the notice on invitation to participate in
this concession procedure, where it shall certify the conformity
thereof with the tenderer selection criteria specified in the
Regulations.
(2) In the case referred to in Paragraph one of this Section,
a tenderer must meet the following requirements:
1) appropriate and sufficient professional qualification;
2) equipment and other devices requested for the performance
of all activities planned within the scope of a concession
contract are available or the tenderer shall provide evidence
that he or she will obtain the requested equipment and other
devices after conclusion of the concession contract;
3) appropriate financial resources are available for the
performance of all activities planned within the scope of a
concession contract (own resources or a written certification of
a lender);
4) appropriate management and organisational experience;
5) other requirements that are laid down in the regulations
and important for the performance of the particular concession
contract.
Section 41. Opening of the
Tenderers' Requests to Participate
(1) The requests to participate shall be opened on the date,
at the time and place specified in the regulations not earlier
than four hours after expiry of the term for the submission
thereof. Opening of requests to participate shall be public.
(2) Requests of the tenderers to participate shall be opened
in the order in which they were submitted. After opening of a
request to participate, the concession procedure commission shall
name the tenderer, the date and the time of submission of the
tender and enter this information in the minutes of the
commission meeting.
[5 October 2023]
Section 42. Selection of
Tenderers
(1) The concession procedure commission shall select tenderers
in conformity with the qualification requirements specified in
the concession procedure documents.
(2) The amount of requirements, and also the requested minimum
level of capacities for the performance of the relevant
concession contract shall be determined by the concession
procedure commission in proportion to the subject-matter of the
concession contract. Such requirements for the minimum level of
conformity shall be included in the concession notice, and also
in the concession procedure documents.
(3) The concession procedure commission shall accept and
recognise statements and other documents which are issued by the
competent authorities of Latvia in the cases referred to in this
Law, if they are issued not earlier than a month prior to the day
of issue, and the concession procedure commission shall accept
and recognise statements and other documents which are issued by
foreign competent authorities if they are issued not earlier than
six months prior to the day of submission thereof, provided that
the issuer of a statement or a document has not specified a
shorter period of validity thereof.
(4) If the concession procedure commission obtains the
necessary information on a tenderer directly from the competent
authority, databases or other sources, the relevant tenderer is
entitled to submit a statement or another document regarding the
relevant fact, if the information obtained by the concession
procedure commission does not conform to the actual
situation.
(5) If the concession procedure commission has doubts
regarding the authenticity of the submitted copy of the document,
it shall request that a tenderer presents the original document
or submits a certified copy of the document.
(6) If the concession procedure commission establishes that
the information included in a request to participate or document
submitted by a tenderer is unclear or incomplete, it shall
request that the tenderer or the competent authority explains or
supplements the abovementioned information or document or submits
the missing document by ensuring equal treatment of all
tenderers. The concession procedure commission shall determine
the term for the submission of the necessary information or
document in proportion to the time which is necessary for the
preparation or submission of such information or document.
(7) If the concession procedure commission has, in accordance
with Paragraph six of this Section, requested to explain or
supplement the information included in the request to participate
or submitted by a tenderer, but the tenderer has failed to do it
in conformity with the requirements stipulated by the concession
procedure commission, the concession procedure commission shall
evaluate the request to participate according to the information
at the disposal thereof.
(8) If the concession procedure documents include a condition
that the concession procedure commission preserves the right to
request tenders only from a limited number of tenderers, the
commission shall prepare a list of the tenderers who will be
invited to submit tenders.
[20 April 2017]
Section 43. Informing Tenderers of
Selection Results
(1) Within three working days after the decision has been
taken, the concession procedure commission shall inform
simultaneously all tenderers of the decision taken on the results
of the tenderer selection (the rejected tenderer shall be also
informed of the reasons for the rejection of the request to
participate submitted thereby) and invite the selected tenderers
to submit tenders. The concession procedure commission shall
inform all tenderers of the term by which the person, taking into
consideration Section 29, Paragraph two, Clause 1 or 2 of this
Law, may submit a complaint on violations of the concession
procedure to the Procurement Monitoring Bureau. Within the
meaning of this Section it shall be considered that the
information has been delivered to all tenderers concurrently if
the relevant information has been provided to them on the same
day.
(2) The concession procedure commission shall send the
information on results of the selection of tenderers by post, fax
or electronically using a secure electronic signature, or
attaching a scanned document to the electronic mail, or deliver
in person. The concession procedure commission shall keep a proof
of the date and manner of sending or delivery of the
information.
(3) When informing of the results of tenderer selection, the
concession procedure commission is entitled to omit the
information, the publication of which might delay the application
of laws and regulations or would be contrary to the public
interests, or would restrict competition among tenderers, or
damage substantial commercial interests of tenderers (public or
private).
[20 April 2017]
Chapter IX Process of the
Competitive Dialogue
Section 44. Submission of Requests
to Participate and Selection of the Tenderers to be Invited to
the Negotiations
(1) In order to participate in the competitive dialogue
procedure, a tenderer shall submit a written request to
participate in the competitive dialogue procedure to the
concession procedure commission within the time period specified
in the notice on invitation to participate in this concession
procedure.
(2) The concession procedure commission shall select tenderers
to be invited to negotiations within the time periods provided
for in the Regulations.
(3) In order for a tenderer to be invited to negotiations, the
tenderer must meet the requirements laid down in Section 40,
Paragraph two of this Law.
Section 45. Invitation of Tenderers
to Negotiations
(1) The concession procedure commission shall inform all
tenderers who have submitted the requests to participate referred
to in Section 44, Paragraph one of this Law of the results of the
tenderer selection in accordance with the procedures laid down in
Section 43 of this Law by specifying the tenderers who are
invited to negotiations and other information referred to in
Section 43, Paragraph one of this Law.
(2) The regulations may specify that, if the number of
tenderers exceeds the number of tenderers provided for in the
regulations, the concession procedure commission shall invite
only a certain number of tenderers to negotiations. In this case
the number of tenderers may not be less than three.
(3) In the case referred to in Paragraph two of this Section,
the concession procedure commission shall invite the number of
tenderers provided for in the regulations to the
negotiations.
(4) The invitation to negotiations shall indicate at least the
date for the initiation of negotiations and time and place for
their organisation, and also the language to be used in the
competitive dialogue.
[25 August 2010]
Section 46. Negotiations with the
Tenderers
(1) On the date, at the time and place determined in the
invitation to negotiations, the invited tenderer shall submit the
solution thereof to the needs and requirements of the public
partner determined in the regulations to the concession procedure
commission.
(2) The task of the negotiations is to develop one or more
alternative solutions that meet the requirements of the
regulations, based on which the tenderers invited to the
negotiations will be invited to submit tenders.
(3) The concession procedure commission shall conduct
negotiations with each invited tenderer individually.
(4) During negotiations, the concession procedure commission
is entitled to discuss all aspects related to a concession
contract with the invited tenderers.
(5) During negotiations, the concession procedure commission
shall ensure equal treatment of all tenderers without creating
more advantageous conditions to any of the tenderers than to
others.
(6) When conducting negotiations with tenderers, the
concession procedure commission shall not disclose solutions
tendered by other tenderers, and also any confidential
information provided by a tenderer participating in the
negotiations, unless the relevant tenderer has expressly agreed
thereto.
(7) If it is provided for in the regulations, the concession
procedure commission is entitled to organise negotiations in
several consecutive stages in order to reduce the number of
solutions to be discussed during the negotiations.
(8) The concession procedure commission shall continue
negotiations with tenderers until the moment when a solution or
solutions are developed that meet the needs and requirements of
the public partner specified in the regulations.
Section 47. Closure of Negotiations
and Invitation to Submit Tenders
(1) If during the negotiations a solution that meets the needs
and requirements of the public partner determined in the
regulations is developed, the concession procedure commission
shall inform each representative of the public partner thereof in
writing by sending the developed solution thereto.
(2) If each representative of the public partner accepts in
written form the solution elaborated during the negotiations, the
concession procedure commission shall send the solution and the
draft concession contract to the monitoring authority to receive
an opinion on the risk allocation between the public partner and
the private partner.
(3) If the opinion of the monitoring authority indicates that
the solution developed during the negotiations and the draft
concession contract show that the risk allocation between the
public partner and the private partner corresponds to the
concession contract, the concession procedure commission shall
close the negotiations.
(4) If the opinion of the monitoring authority indicates that
the solution elaborated during negotiations and the draft
concession contract show that the risk allocation between the
public partner and the private partner fails to conform to the
concession contract, the concession procedure commission shall
inform the representative of the public partner thereof and
continue negotiations with tenderers, taking into account written
instructions of the representative of the public partner, or take
the decision to terminate the concession procedure.
(5) If the opinion of the monitoring authority indicates that
the draft concession contract shows that the risk allocation
between the public partner and the private partner does not
correspond to the concession contract, the concession procedure
commission shall elaborate a new draft concession contract.
(6) In the cases referred to in Paragraphs four and five of
this Section, the concession procedure commission shall act in
accordance with Paragraph one and two of this Section.
(7) The concession procedure commission shall inform all
tenderers who participated in the negotiations of the closure of
negotiations and invite these tenderers to submit tenders within
the time period laid down in accordance with Section 39,
Paragraph five of this Law.
(8) The invitation to submit tenders must include at least the
following information:
1) the solution elaborated during the negotiations with
tenderers;
2) the term for the submission of tenders, address to which
the tenders are to be sent and the language the tender is to be
submitted in;
3) the tender validity period.
(9) The concession procedure commission shall specify in the
invitation that a tender shall include all the required elements
that are included in the solution developed during the
negotiations.
(10) The draft concession contract shall be attached to the
invitation. The provisions of the draft concession contract that
are immutable shall be specified in the invitation.
(11) If the regulations provide that awards are assigned or
payments made to the tenderers for participation in the
negotiations, the awards shall be assigned and the payments shall
be made in accordance with the procedures provided for in the
regulations.
[20 April 2017]
Chapter X Determination of the
Winner of a Concession Procedure
Section 48. Submission of Tenderers'
Tenders
(1) If the procedure without the selection of tenderers is
organised, the tenderer shall submit a tender within the time
period specified in the notice referred to in Section 38,
Paragraph one of this Law which has been published on the website
of the Procurement Monitoring Bureau.
(2) If the procedure with the selection of tenderers is
organised, the tenderer who has received the invitation to submit
a tender referred to in Section 43 of this Law shall submit a
tender within the time period specified in the invitation.
(3) If the competitive dialogue is organised, the tenderer who
has received the invitation to submit a tender referred to in
Section 47, Paragraph seven of this Law shall submit a tender
within the time period specified in the invitation.
(4) The tenderer shall specify the following in the
tender:
1) the tendered technical solution in accordance with the
safety, environmental protection, and other conditions specified
in the regulations;
2) the tendered financial and commercial solution of the
concession;
3) other information specified in the regulations or
invitation to submit a tender.
(5) If a tender is submitted by a tenderer who has
participated in the competitive dialogue, the tender shall also
include all the required elements that are included in the
solution elaborated during the negotiations.
(6) The regulations may provide that tenderers may submit
variants of a tender.
(7) Tenderers are entitled to request from the concession
procedure commission explanations of the regulations and other
information on the concession procedure if such a request is
submitted no later than nine days before the expiry of the time
period for the submission of tenders.
(8) The concession procedure commission shall reply to the
requests for information referred to in Paragraph seven of this
Section within five working days.
[20 April 2017]
Section 48.1 Tender
Security and Performance Bond
(1) The concession procedure commission is entitled to request
that a tenderer submits or pays in a tender security and
performance bond. The concession procedure commission shall
specify in the concession procedure documents the types, amount
of and time limits of the tender security and performance bond,
and also the provisions for the submission and issue, payment,
and disbursement thereof.
(2) The amount of the tender security shall be determined
commensurately, taking into account the estimated contract price
of the relevant concession contract and the subject-matter of the
concession contract, but not more than two per cent of the
estimated contract price.
(3) The time limit of the tender security shall be determined
commensurately, taking into account the complexity of the
relevant concession contract and the estimated time limit for the
evaluation of tenders, but it may not exceed six months counting
from the day when tenders were opened.
(4) A tenderer is entitled to submit the tender security and
performance bond as a bank guarantee, insurance policy or, if the
concession procedure commission has provided for such an option
in the concession procedure documents, as a payment of a sum of
money in the account indicated by the representative of the
public partner.
(5) The tender security shall be in effect for the shortest of
the following time periods (except in the case referred to in
Paragraph six of this Section):
1) within the minimum time limit of validity of the tender
security laid down in the concession procedure documents;
2) if the concession procedure documents specify that the
tenderer to whom the concession contract has been awarded submits
a performance bond after conclusion of the concession contract -
until the day when the selected tenderer submits such performance
bond;
3) until conclusion of the concession contract.
(6) The provider of security shall disburse, or the
representative of the public partner shall deduct the amount of
the tender security paid in by the tenderer, if:
1) the tenderer withdraws its tender during the period of
validity of the tender security;
2) the tenderer to whom the concession contract has been
awarded has not submitted the performance bond provided for in
the concession procedure documents and concession contract within
the time limit laid down by the concession procedure
commission;
3) the tenderer to whom the concession contract has been
awarded does not sign the concession contract within the time
limit laid down by the concession procedure commission.
[20 April 2017]
Section 49. Opening of Tenderers'
Tenders
(1) The concession procedure commission shall open the
submitted tenders not earlier than four hours after expiry of the
term for the submission of tenders at the place and time
specified in the invitation (except for the case referred to in
Section 29, Paragraph seven of this Law). Opening of tenders
shall be public.
(11) If in the case referred to in Section 29,
Paragraph seven of this Law the complaint examination commission
takes the decision referred to in Section 30, Paragraph two,
Clause 1 of this Law, or the administrative case is terminated,
the concession procedure commission shall publish information in
the buyer profile on the place and time of the tender opening
meeting, and also inform the tenderers thereof at least three
working days in advance. If the complaint examination commission
takes the decision referred to in Section 30, Paragraph two,
Clause 3 or Paragraph three of this Law, the concession procedure
commission shall not open the submitted tenders and shall issue
or send them back to the tenderers.
(2) Tenders shall be opened according to the submission
sequence thereof by naming the tenderer, the tender submission
time, the offered contract price and other information that
describes the tender, and this information shall be entered in
the minutes of the commission meeting.
(3) Upon a request of a tenderer, the concession procedure
commission shall present the financial tender where the offered
contract price is determined in accordance with the requested
form of a financial tender.
[20 April 2017; 5 October 2023]
Section 50. Evaluation of Tenderers'
Tenders
(1) If the procedure without the selection of tenderers is
applied to the concession procedure, the concession procedure
commission shall select tenderers in conformity with the
qualification requirements specified in the concession procedure
documents, verify the conformity of tenders with the requirements
specified in the concession procedure documents, and select a
tender according to the criteria specified for tender
evaluation.
(2) If the procedure with the selection of tenderers is
applied to the concession procedure, the concession procedure
commission shall verify the conformity of tenders with the
requirements specified in the concession procedure documents, and
select a tender according to the criteria specified for tender
evaluation.
(3) If a competitive dialogue is applied to the concession
procedure, the concession procedure commission shall verify the
conformity of a tender with the requirements specified in the
solution elaborated during negotiations, and select a tender
according to the criteria specified for tender evaluation.
(4) If the concession procedure commission establishes that
the information included in a tender or document submitted by a
tenderer is unclear or incomplete, it shall request the tenderer
to explain or supplement the abovementioned information or
document or submit the missing document by ensuring equal
treatment of all tenderers. However, such explanation, updating,
harmonisation and provision of additional information may not
change the main elements of the tender. The concession procedure
commission shall determine the time limit for the submission of
the necessary information or document in proportion to the time
which is necessary for the preparation or submission of such
information or document.
(5) If the concession procedure commission has, in accordance
with Paragraph four of this Section, requested to explain or
supplement the information included in a tender or submitted by a
tenderer, but the tenderer has failed to do it in conformity with
the specified requirements, the concession procedure commission
shall evaluate the tender according to the information at the
disposal thereof.
(6) During evaluation of tenders, the concession procedure
commission shall verify whether a tender does not contain
arithmetical errors. If the concession procedure commission finds
such errors, it shall correct these errors. The concession
procedure commission shall inform the tenderer whose errors have
been corrected of the correction of errors and the corrected sum
of the tender. When evaluating a financial tender, the concession
procedure commission shall take into account corrections.
(7) During evaluation of tenders, the concession procedure
commission is entitled to request a tenderer to submit a
certification that it has developed the tender independently.
(8) Each member of the concession procedure commission shall
evaluate a tender individually according to all the evaluation
criteria specified in the concession procedure documents. The
tender which upon aggregation of individual evaluations has
received the highest score shall be recognised as the most
economically advantageous tender.
(9) After the evaluation of tenderers' tenders, the concession
procedure commission shall prepare a list of all the tenderers
who submitted tenders listing them according to the scores and
enter it in the minutes of the concession procedure commission
meeting.
[20 April 2017]
Section 51. Criteria for the
Evaluation of Tenderers' Tenders
(1) The concession procedure commission shall award the
concession contract to the most economically advantageous tender
which is determined as follows:
1) on the basis of the price or costs by applying the
efficiency approach, for example, evaluating the costs of the
life cycle;
2) taking into account the price or costs and the quality
criteria linked to the subject-matter of the concession contract,
for example:
a) the quality, including technical merit, aesthetic and
functional characteristics, accessibility, conformity with
universal design, social and environmental protection
requirements, innovative characteristics and trading
conditions;
b) management structure of the performance of the concession
contract and qualification and experience of the staff involved,
if the qualification and experience of the staff involved can
have a significant impact on the quality of performance of the
procurement contract;
c) the after-sale services and technical assistance, delivery
conditions, such as delivery date, delivery process and delivery
period or period of completion of delivery.
(2) Quality criteria are linked to the subject-matter of the
concession contract if they relate to the construction work,
supply or services at any stage of their life cycle, and also the
factors involved in the process of the performance of the
construction work, production or trade of the products or
provision of services, or any other process in a stage of their
life cycle, even if such factors are not directly linked to the
subject-matter of the concession contract (for example,
conformity with the environmental protection requirements or
social criteria during the provision of service or performance of
construction work).
(3) The following conditions may be used as the criteria for
the evaluation of the non-financial and non-commercial aspects of
a tender:
1) technical evaluation provided in the tender (the minimum
tender for the implementation of the standard of technical design
or delivery of service, or the improvement thereof specified in
the concession procedure documents);
2) exploitation and management evaluation provided in the
tender (the procedures, the method and conformity with the
determined standards of exploitation and management of the
planned structure);
3) quality of services and the manners for ensuring the
continuity thereof;
4) other conditions important for the performance of the
particular concession contract.
(4) The following conditions may be used as the criteria for
the evaluation of financial and commercial aspects of a
tender:
1) any payments to be made to the public partner within the
scope of a concession contract;
2) any payments to be made to the private partner within the
scope of a concession contract;
3) the offered design and construction costs, annual
exploitation and maintenance costs, and also the offered
financing procedures;
4) the amount of any financial support (if such is planned)
that is expected from the public partner or any other State or
local government institution;
5) justification of the financing offered in accordance with
the submitted documentation and the conditions determined
therefor;
6) other conditions important for the performance of the
particular concession contract.
(5) The concession procedure commission shall determine such
tender evaluation criteria which do not restrict competition and
are objectively comparable or evaluable, and supplement them with
the requirements which allow to efficiently verify the
information submitted by tenderers.
(6) The concession procedure commission shall indicate in the
concession procedure documents all the tender evaluation criteria
in order of importance thereof, the values of the criteria, and,
where appropriate, spread of values, and also the selection
algorithm of a tender in accordance with these criteria and shall
describe how each of the evaluation criteria indicated will be
applied.
(7) The concession procedure commission shall indicate in the
concession procedure documents the decisive tender selection
criterion according to which it will select the tender, if, prior
to taking the decision on the award of the concession contract,
it establishes that score of at least two tenders is
identical.
(8) If such a tender is received which suggests an innovative
solution with a special functional operational level which the
concession procedure commission could not have foreseen, the
concession procedure commission may, in exceptional cases, change
the order of the tender evaluation criteria in order to take
account of the specific innovative solution. Amendments to the
order of the importance of the tender evaluation criteria may be
made by ensuring equal treatment of all tenderers.
(9) Subject-matter of the concession, criteria and the minimum
requirements for tender evaluation may not be changed during
negotiations with tenderers or negotiations on a draft concession
contract.
(10) If the concession procedure commission changes the order
of the tender evaluation criteria in the case referred to in
Paragraph eight of this Section, the concession procedure
commission shall concurrently inform all tenderers of the change
in the order of the tender evaluation criteria and send an
invitation to submit a tender in conformity with the time limit
for the submission of tenders specified in Section 39, Paragraphs
four and five of this Law. If the tender evaluation criteria are
published at the moment when the concession notice is published,
the concession procedure commission shall publish a new
concession notice.
[20 April 2017]
Section 51.1 Life-cycle
Costs
(1) Life-cycle costs shall fully or partially cover the
following costs over the life cycle of a construction work or
service:
1) the costs borne by the public partner or other users, such
as:
a) the costs relating to acquisition;
b) the costs of use (for example, consumption of electricity
and other resources);
c) the maintenance costs;
d) the end of life costs (for example, collection and
regeneration costs);
2) the costs incurred during the life cycle of construction
work or service and related to the environmental impact (for
example, cost of emissions of greenhouse gases and of other
pollutant emissions, costs of measures oriented towards
mitigation and adaptation to climate change), if they may be
expressed in monetary terms and verified.
(2) The concession procedure commission shall indicate in the
concession procedure the method for calculating the life-cycle
costs and the data to be provided by the tenderers required for
making the calculation.
(3) The methodology for the calculation of the costs related
to environmental impact shall conform to the following
conditions:
1) it is based on objectively verifiable and
non-discriminatory criteria;
2) it is accessible to all interested persons;
3) the data necessary for calculations are at the disposal of
tenderers, including at the disposal of the tenderers registered
in the country other than the European Union Member State, but
which is a contracting party to the Agreement on Government
Procurement of the World Trade Organisation or other
international agreements binding on the European Union, or they
are easily accessible.
[20 April 2017]
Section 51.2 Abnormally
Low Tender
(1) If a tender for a particular works concession contract or
service concession contract appears to be abnormally low, the
concession procedure commission shall ask the tenderer for an
explanation of the tendered price or costs, and also for
information on the average hourly tariff rates in profession
groups of the employees of the tenderer and of subcontractors
specified in the tender thereof.
(2) The explanation may specifically relate to:
1) the costs of the construction method or of the services to
be provided;
2) the technical solutions chosen and exceptionally favourable
conditions available to the tenderer for the execution of
construction work or provision of services;
3) the characteristics and originality of the tendered
construction work or services;
4) the compliance with the obligations laid down in the laws
and regulations governing the fields of environmental, social,
and labour law, and labour protection, and collective
agreements;
5) the commitments towards subcontractors;
6) the aid for commercial activity received by the
tenderer.
(3) The concession procedure commission shall, upon
consultation with a tenderer, evaluate the explanations provided
by the tenderer.
(4) The concession procedure commission shall reject a tender
as abnormally low, if the explanations provided does not
satisfactorily account for the low level of price or costs
tendered by the tenderer, or the price or costs do not cover the
costs related to the compliance with the obligations specified in
laws and regulations governing the fields of environmental,
social, and labour law, and labour protection, and collective
agreements.
(5) If the concession procedure commission establishes that a
tender is abnormally low because the tenderer has received aid
for commercial activity, the tender may be rejected after
consultations with the tenderer only on the basis of the fact
that the tenderer is not able to prove, within a reasonable time
period specified by the concession procedure commission, that the
received aid for commercial activity is compatible with the
internal market in accordance with Section 107 of the Treaty on
the Functioning of the European Union. If the concession
procedure commission rejects the tender for this reason, it shall
inform the European Commission and the Procurement Monitoring
Bureau of the rejection of the tender and the reason for
rejection thereof.
(6) The information referred to in Paragraph one of this
Section in respect of a person registered or permanently residing
in Latvia on the average hourly tariff rates in profession groups
of its employees shall be obtained by the concession procedure
commission and also by the tenderer relating to itself, in
accordance with the procedures stipulated by the Cabinet, from
the State Revenue Service using the information system stipulated
by the Cabinet. The concession procedure commission is entitled
to receive the abovementioned information from the State Revenue
Service without requesting a consent from the tenderer and the
subcontractors specified in the tender thereof.
(7) The Cabinet shall determine:
1) the information system where the information referred to in
Paragraph one of this Section can be obtained from the State
Revenue Service, and also the procedures for maintaining and
using such system;
2) the purpose of processing and scope of the information
referred to in Paragraph one of this Section and to be
verified;
3) the procedures by which the information system referred to
in Clause 1 of this Paragraph shall receive information from the
information system maintained by the institution referred to in
Paragraph six of this Section and process it.
[20 April 2017; 5 May 2022]
Section 52. Negotiations on the
Draft Concession Contract
(1) The concession procedure commission shall invite the
tenderer who according to Section 50, Paragraph one, two or three
of this Law has received the highest score from the concession
procedure commission (hereinafter - the winner of the procedure)
to the negotiations on the draft concession contract.
(2) Negotiation may be held only on those provisions of the
draft concession contract which are not determined as immutable
in the regulations. The provisions of the draft concession
contract according to which the tenderers' tenders were evaluated
and the winner of the tendering procedure has been determined may
not be changed.
(3) If the concession procedure commission reaches an
agreement with the winner of the procedure on the concession
contract, it shall take the decision to conclude a concession
contract with the winner of the tendering procedure.
(4) If the concession procedure commission fails to reach an
agreement with the winner of the tendering procedure on the
concession contract and this tenderer refuses to conclude a
concession contract with the public partner, the commission is
entitled to invite the tenderer who stands next in the list
referred to in Section 50, Paragraph nine of this Law to the
negotiations, if it is agreed with the representative of the
public partner, or terminate the concession procedure without
selecting any tender.
(5) If the concession procedure commission agrees upon the
concession contract with the tenderer with the next highest score
in accordance with the procedure referred to in Paragraph four of
this Section, it shall take the decision to enter into the
concession contract with this tenderer.
[20 April 2017]
Chapter XI Termination of the
Concession Procedure
Section 53. Notice on the Results of
the Concession Procedures and Procedures by which Tenderers Shall
Be Informed of the Results
(1) The concession procedure commission shall publish the
concession award notice within 10 working days after conclusion
of the concession contract or taking of the decision to terminate
or suspend the concession procedure.
(2) If a concession contract is to be concluded for the
services referred to in Annex 2 to this Law, the concession
procedure commission shall publish the concession award notice
for social and other special services within 10 working days
after conclusion of the concession contract or taking of the
decision to terminate or suspend the concession procedure. The
public partner may combine notices on awarding of concession for
social and other special services within one quarter and publish
them not later than within 10 working days after the end of each
quarter.
(3) The concession procedure commission shall, within three
working days after taking of the decision on the results of the
concession procedure, concurrently inform all tenderers of the
decision taken. The concession procedure commission shall
announce the name of the selected tenderer by specifying:
1) the reasons for the rejection of the submitted tender to
the rejected tenderer;
2) the characterisation and relative advantages of the
selected tender to the tenderer which has submitted an
appropriate tender;
3) the time period within which a tenderer, taking into
consideration Section 29, Paragraph two, Clause 1 or 2 of this
Law, may submit a complaint on infringements of the concession
procedure to the Procurement Monitoring Bureau.
(4) When informing of the results of the concession procedure,
the concession procedure commission is entitled to omit such
information the publication of which might delay the application
of laws and regulations or would be contrary to the public
interests, or would restrict competition among tenderers, or
damage substantial commercial interests of tenderers (public or
private).
(5) The concession procedure commission shall send the
information on results of the concession procedure by post, fax
or electronically using a secure electronic signature, or
attaching a scanned document to the electronic mail, or deliver
in person. The concession procedure commission shall keep proof
of the date and manner of sending or delivery of the
information.
(6) Within the meaning of this Section, it shall be considered
that the information is delivered to all tenderers concurrently
if the information is sent or delivered to them on the same
day.
[20 April 2017; 5 October 2023]
Section 53.1 Notice on
the Results of the Concession Procedure
(1) In the cases referred to in Section 3 of this Law or in
the case of a negotiated procedure, the public partner or the
representative of the public partner may publish a voluntary
notice on the results of the concession procedure.
(2) A voluntary notice on the results of the concession
procedure shall be published in order for the interested persons
to be able to appeal justification of the concession procedure
which, due to an error, has been carried out without applying an
appropriate procurement procedure or without publishing the
concession notice, and in order to concurrently eliminate the
consequences referred to in Section 31.3, Paragraph
one of this Law.
[20 April 2017; 5 October 2023]
Section 53.2 Notice on
Performance of the Contract
The concession procedure commission shall publish a notice on
performance of the contract within 10 working days after
performance of the concession contract.
[5 October 2023]
Section 54. Conclusion of the
Concession Contract
(1) The public partner or the representative of the public
partner shall conclude a concession contract with a private
partner no sooner than on the next working day after the end of
the waiting period if a complaint regarding infringements of the
concession procedure has not been submitted to the Procurement
Monitoring Bureau in accordance with the procedures laid down in
Section 29 of this Law.
(2) The waiting period referred to in Paragraph one of this
Section shall be:
1) 10 days after the day when the information referred to in
Section 53, Paragraph three of this Law has been sent to all
tenderers electronically by using a secure electronic signature
or attaching a scanned document to the electronic mail, or by fax
or handed over in person, and one additional working day;
2) 15 days after the day when the information referred to in
Section 53, Paragraph three of this Law has been sent to at least
one tenderer by post, and one additional working day.
(3) A concession contract may be concluded without complying
with Paragraph one of this Section if:
1) the concession contract is awarded to the sole tenderer and
there are no tenderers which would be entitled to submit a
complaint in accordance with the procedures laid down in Section
29 of this Law;
2) the negotiated procedure is applied.
[20 April 2017]
Section 55. Final Report of the
Concession Procedure Commission
(1) The concession procedure commission shall prepare the
final report not later than on the day when a notice on the
results of the concession procedure is sent to tenderers.
(2) The final report of the concession procedure commission is
a report of the commission reflecting the course of the
concession procedure and including all the most significant
events and stages of the concession procedure.
(3) The final report of the concession procedure commission
shall include the following information:
1) the name and address of the public partner, the
identification number of the concession procedure, the type of
the concession procedure, and also the subject-matter of the
concession contract, short description thereof, and contract
price;
2) the date when the concession notice is published on the
website of the Procurement Monitoring Bureau and, if applicable,
in the Official Journal of the European Union;
3) the composition of the concession procedure commission and
the justification for the establishment thereof, the person
preparing the concession procedure documents, and the invited
experts;
4) the time limit for the submission of tenders and validity
period of tenders;
5) the place, date, and time for the opening of tenders, the
given name, surname, and position of the persons present at the
opening of tenders;
6) the names of the tenderers which have submitted tenders by
specifying name of each tenderer, time of the submission of
tender, tendered contract price, and other information
characterising the tender;
7) the name of the tenderer with whom it has been decided to
conclude a concession contract, contract price, and also a
summary of the evaluation of tenders, and justification for the
selected tender;
8) the information (if it is known) regarding the lot of the
concession contract which the selected tenderer has intended to
transfer to subcontractors, and also the names of
subcontractors;
9) the justification for the decision on the rejected
tenderers, and also on the tenders not conforming to the
concession procedure documents;
10) the justification for rejection of a tender, if the
concession procedure commission has recognised a tender as
abnormally low;
11) the justification for a decision, if the concession
procedure commission has taken the decision to terminate the
concession procedure without selecting any tender, or suspend the
concession procedure;
12) the justification for a decision, if the concession
procedure commission has taken the decision to conclude a
concession contract with another tenderer who has the next
highest evaluated tender;
13) the information on notification of results to
tenderers;
14) the requests received to explain the concession procedure
or the regulations, answers provided, and also indications on
whether all tenderers have been informed of questions and answers
in the same scope;
15) the identified conflicts of interest and measures taken
with regard to them;
16) the reasons (if applicable) for which means of
communication other than electronic ones have been used for the
submission of tenders.
(4) In the case of the procedure with the selection of
tenderers, the following information shall be included in the
final report of the concession procedure commission in addition
to the information referred to in Paragraph three of this
Section:
1) the time limit for the submission of requests to
participate;
2) the place, date, and time for the opening of requests to
participate, the given name, surname, and position of the persons
present at the opening of requests to participate;
3) the names of the tenderers which have submitted requests to
participate by specifying name of each tenderer, time of the
submission of request to participate, and other information
characterising the request to participate;
4) in the case of the reduction of the number of tenderers,
the names of the selected tenderers and the reasons for selection
thereof, the names of the rejected tenderers and the reasons for
rejection thereof.
(5) In the case of a competitive dialogue, the following
information shall be included in the final report of the
concession procedure commission in addition to the information
referred to in Paragraphs three and four of this Section:
1) needs and requirements of a public partner indicated in the
regulations on which negotiations have been carried out with
tenderers;
2) when and where the negotiations have been initiated, and
also the language that has been used in the negotiations;
3) information on how the tenderers were invited to the
negotiations;
4) stages of negotiations if the negotiations with tenderers
were held in stages, and results thereof;
5) in the case of reducing the number of solutions, the names
of the selected tenderers and the reasons for their selection,
names of the rejected tenderers and the reasons for their
rejection;
6) amount of the awards or payments to the participants of the
negotiations for the participation in the negotiations, manner
and time limits for assigning the awards or manner and terms for
making the payments (if it was planned that there would be awards
or payments for participation in the negotiations).
(6) The concession procedure commission shall prepare the
final report of the concession procedure commission and publish
it in the buyer profile within five working days after taking of
the decision on the results of the concession procedure.
[20 April 2017]
Chapter XII Special Conditions for
the Work Concession Procedure
[20 April 2017]
Section 56. General Conditions for
the Award of a Works Concession Contract
[20 April 2017]
Section 57. Publication of the
Notice
[20 April 2017]
Section 58. Time Periods for the
Submission of Tenders
[20 April 2017]
Section 59. Specific Conditions for
the Conclusion of a Contract on the Execution of Construction
Work with Third Parties
[20 April 2017]
Division C
Public-Private Partnership Contracts, Special Purpose Entities,
Information Exchange Agreement, Activities with Public Partner
Resources and Lender's Intervention Right
Chapter XIII Conclusion,
Amendment, Early Termination and Registration of a Public-Private
Partnership Contract
Section 60. Time Periods of a
Public-Private Partnership Contract
(1) A partnership procurement contract is a civil contract
that may be concluded for a period of time that exceeds 5 years,
but does not exceed 30 years, except for the case determined in
Paragraph three of this Section.
(2) A concession contract is a civil contract that may be
concluded for a period of up to 30 years, except for the case
determined in Paragraph three of this Section.
(21) When specifying the duration of a concession
contract that is longer than five years, the construction work or
services provided for in the concession contract and the time
which would be necessary for the private partner to recover the
investments made within the scope of a concession contract shall
be taken into account.
(3) A public-private partnership contract may be concluded for
a time period that exceeds 30 years if it is necessary for the
purpose of the contract and the results to be achieved that are
justified by financial and economic calculations.
(4) The duration of a concession contract shall be included in
the concession procedure documents, except when it is used as one
of the tender evaluation criteria.
(5) The public partner may specify shorter duration of a
concession contract than that provided for in Paragraph
2.1 of this Section, if the compensation related
thereto for the private partner does not exclude exploitation
risks of a structure or service.
[20 April 2017]
Section 61. Contracting Parties of
the Public-Private Partnership Contract
(1) A public-private partnership contract shall be concluded
by each public partner and the tenderer to whom the relevant
contract is awarded as a result of the public-private partnership
procedure.
(2) Each representative of the public partner shall sign the
contract on behalf of the public partner.
(3) The representative of the public partner shall send the
concluded public-private partnership contract to the monitoring
authority.
Section 62. Information to be
Included in the Public-Private Partnership Contract
The following information shall be included in a
public-private partnership contract:
1) the subject-matter of the contract including the amount,
content, quality, and type of construction work or services;
2) the financial conditions of the contract;
3) the set of the rights which each public partner transfers
to the private partner;
4) the public partner resources which each public partner
transfers to the private partner and the procedures for
transferring such resources;
5) the property rights of the contracting parties to the
tangible property newly created during the validity period of the
contract, and also intangible assets related thereto - licences,
permits, and other documentation.
6) the validity period of the contract;
7) the time periods for the execution of construction work or
provision of services and the conditions for the revision
thereof;
8) the procedures by which the public partner resources and
the property newly created during the performance of the contract
that is necessary for further provision of services or management
of property will be transferred to the public partner in case of
early termination of the contract or upon expiry of the
contract;
9) the restrictions or conditions for changes in the equity
capital of the private partner or to the decisive influence of
the private partner in the commercial company, or to any changes
in the commercial companies over which the private partner has a
decisive influence;
10) the risks which each public partner transfers to the
private partner;
11) the payments the contracting parties make to each other
during the validity period of the contract and the conditions for
the revision thereof (if such are provided for);
12) the right (if necessary) for the private partner to
collect payments from end-users for any services, the amount of
the payment of the service recipient for the relevant service
during the validity period of the contract and the conditions for
the revision thereof;
13) the obligations of the private partner (if necessary) to
provide third parties with an uninterrupted access to the object
used or service provided during the validity period of the
contract;
14) the right of the contracting parties to transfer their
rights and obligations within the scope of the contract to third
parties and conditions that restrict such a right;
15) a condition regarding the fact whether the private partner
is obliged to acquire an insurance for the risks related to the
performance of the contract and if such is required - the risks
and the amount thereof to be insured;
16) the obligations of the private partner as regards
environmental protection and cultural heritage protection (if
necessary);
17) the obligations of the contracting parties as regards
ensuring, transfer or purchase of immovable property, equipment,
and other property requested for the performance of the contract
and other conditions referring to these obligations (if such are
provided for);
18) the procedures by which each public partner will verify
the performance of the contract;
19) the force majeure circumstances and actions of the
contracting parties if such have occurred;
20) the cases of early termination of the contract in
accordance with Section 65 of this Law, the procedures for early
termination of the contract in accordance with Section 66 of this
Law, the procedure for the determination of the amount of
compensations for the contracting parties and the payment thereof
in these cases in accordance with Section 67 of this Law;
21) the cases when a contracting party may unilaterally demand
early termination of the contract in accordance with Section 65,
Paragraph one, Clause 1 and Paragraph two, Clause 1 of this
Law;
22) the intervals for amending the provisions of the contract,
the permissible limits and the procedures;
23) linking the contract with other previously concluded
contracts (or obligations towards third parties if such exist),
the obligations to be taken over from such contracts;
24) the conditions upon occurrence of which the public partner
or the lender may take over fulfilment of any obligations of the
private partner in order to ensure efficient and uninterrupted
execution of construction work or provision of services provided
for in the contract;
25) a certification on the right of the representative of the
public partner to receive information from the lender on private
partner financing conditions and on the fact that the private
partner conforms to the financing conditions;
26) the procedures by which the contract shall be continued if
the legal person as a public partner terminates the activity (if
the legal person is a public partner) in accordance with Section
65, Paragraphs five and six of this Law;
27) the dispute settlement procedures;
271) the condition that in case the economic
operator or - if the public partner or its representative has
provided for the direct payments to the subcontractors in
accordance with Section 33.1, Paragraph five of this
Law - the subcontractor submits an electronic invoice, it shall
conform to the laws and regulations regarding the applicable
standard of an electronic invoice and the specifications for the
use of its key elements and the procedures for its handling. In
accordance with the laws and regulations regarding the applicable
standard of an electronic invoice and the specifications for the
use of its key elements and the procedures for its handling,
additional key elements to be mandatorily indicated in the
electronic invoice may be specified in the public-private
partnership contract;
28) other provisions ensuing from the Public Procurement Law
or this Law or that are considered by the contracting parties as
necessary and that are not in contradiction to laws and
regulations.
[21 February 2019 / See Paragraph 32 of Transitional
Provisions]
Section 62.1 Contract
Register
The Procurement Monitoring Bureau shall, within one working
day after publishing the concession award notice, the concession
award notice for social and other special services, the notice on
changes in the concession contract during the period of validity
thereof, or the notice on performance of the contract, as
appropriate, make an entry or supplement an entry in the Contract
Register on the concluded concession contract or the amendments
thereto with the information specified in the respective
notice.
[5 October 2023]
Section 63. Amending the
Public-Private Partnership Contract
(1) Amendments to a concession contract shall be admissible if
they do not change the general nature of the concession contract
(the type and the objective specified in the concession procedure
documents) and conform to one of the following cases:
1) amendments are non-substantial;
2) amendments are substantial, and they are only made in the
cases referred to in Paragraph three of this Section;
3) amendments are made in the case referred to in Paragraph
five of this Section, irrespective of whether they are
substantial or non-substantial.
(2) Amendments to a concession contract shall be substantial
in any of the following cases:
1) if the amended provisions of the concession contract had
been provided for in the concession procedure documents, they
would have allowed for the submission of different tenders, or
participation or selection of other tenderers in the concession
procedure;
2) economic balance (for example, risk allocation and related
compensatory means) provided for in a concession contract is
changed in the interests of the tenderer selected in the
concession procedure;
3) amendments significantly expand the scope of
concession;
4) the tenderer selected in the concession procedure (a
contracting party) is replaced by another tenderer in the cases
not referred to in Paragraph three, Clause 4 of this Section.
(3) Substantial amendments to a concession contract shall be
admissible in the following cases:
1) the concession procedure documents and the concession
contract clearly and unequivocally provide for a possibility of
amendments, conditions when amendments are admissible, the scope
and nature of amendments. Such provisions shall not provide for
changes or possibilities which would change the general nature of
the concession contract;
2) in order to perform the initial concession contract the
public partner requires additional construction work or services
which were not included in the initial concession contract, and
change of the private partner would cause a significant increase
in costs, and such change may not be made for economic and
technical reasons, such as the requirements for substitutability
or compatibility with the equipment, services, or installations
purchased under the initial concession contract, or the change of
the private partner would cause significant difficulties;
3) changes in the concession contract are necessary for
reasons which the public partner could not foresee before, and
they do not change the general nature of the concession
contract;
4) the tenderer selected in the concession procedure (a party
to the concession contract) is replaced by another tenderer in
accordance with the provisions of the laws and regulations in the
field of commercial law regarding reorganisation of merchants and
transition of a company, this tenderer conforms to the
qualification requirements laid down in the concession notice or
in the concession procedure documents, and the reasons for
exclusion of tenderers referred to in Section 37, Paragraph two
of this Law are not applicable thereto.
(4) Each increase in the contract price of the concession
contract which has not been concluded to ensure the activities
referred to in Section 3, 4, 5, 6, or 7 of the Law on the
Procurement of Public Service Providers, in the case of the
amendments referred to in Paragraph three, Clauses 1, 2, and 3 of
this Section may not exceed 50 per cent of the initial contract
price of the concession contract.
(5) Amendments to a concession contract shall be admissible,
if the value of such amendments which is determined as the total
monetary value of all amendments made consecutively (without
taking into account of value the amendments which are made in
accordance with Paragraph three, Clauses 1, 2, and 3 of this
Section) concurrently fails to reach the following:
1) the threshold of contract price specified by the Cabinet
starting from which the concession notice should be published in
the Official Journal of the European Union;
2) 10 per cent of the initial contract price of the concession
contract.
(6) If a concession contract provides for the indexation of
contract price, the initial contract price of the concession
contract referred to in Paragraphs four and five of this Section
shall be a contract price subject to indexation. If the
concession contract does not provide for the indexation of
contract price, the contract price shall, upon making of
amendments, be specified, taking into account the average
inflation level in a Member State of the public partner.
(7) If the public partner has made the amendments referred to
in Paragraph three, Clauses 2 and 3 of this Section to the
concession contract, the representative of the public partner
shall, within 10 working days after entering into effect of the
amendments, publish a notice on changes in the concession
contract during the period of validity thereof.
(8) The concession procedures specified in this Law shall be
applicable to the amendments to a concession contract which fail
to conform to Paragraph one of this Section.
(9) In order to sign the amendments to a public-private
partnership contract, the public partner shall receive an opinion
of the monitoring authority and, if the amendments to the
contract change the accounting rules of the public-private
partnership assets specified in the contract, also an opinion of
the Ministry of Finance on the impact of the amendments on the
amount of the long-term liabilities of the State budget, the
balance of the general government sector, and the debt. If it is
determined in the opinion of the Ministry of Finance that the
amendments to the public-private partnership contract will have a
negative impact on the amount of the long-term liabilities of the
State budget, the balance of the general government sector, and
the debt, the Cabinet shall take a decision on amendments to the
contract.
(10) The representative of the public partner shall send the
amendments to the public-private partnership contract signed by
the contracting parties to the monitoring authority.
[20 April 2017; 24 March 2022; 5 May 2022]
Section 63.1 Change of
the Personnel and Subcontractors Involved in the Performance of a
Concession Contract and Involvement of New Personnel and
Subcontractors
(1) A tenderer selected in the concession procedure (a party
to the concession contract) is not entitled to change the
personnel and subcontractors specified in the tender and involve
additional subcontractors in the performance of the concession
contract without coordination with the public partner. The public
partner may request the opinion of the personnel and
subcontractors on the reasons for this change. The public partner
may provide in the concession contract that the tenderer selected
in the concession procedure (a party to the concession contract)
shall coordinate involvement of additional personnel in the
performance of the concession contract with the public
partner.
(2) The change of the personnel specified in a tender shall
only be admissible according to the procedures and in the cases
specified in the concession contract. The public partner shall
not agree with the change of the personnel specified in the
tender in the cases provided for in the concession contract and
in the cases when the tendered personnel fails to comply with the
requirements specified for the personnel in the concession
procedure documents, or they do not have at least the same
qualification and experience as the personnel which was evaluated
when determining the economically most advantageous tender.
(3) The public partner shall not agree to the change of the
subcontractor specified in a tender, if any of the following
conditions applies:
1) the tendered subcontractor does not meet the requirements
specified for subcontractors in the concession procedure
documents;
2) the subcontractor on whose capacities the tenderer selected
in the concession procedure has relied upon to certify that the
qualification thereof conforms to the requirements laid down in
the concession notice and in the concession procedure documents
is replaced, and the tendered subcontractor does not have at
least the same qualification to which the tenderer selected in
the concession procedure has referred to when certifying its
conformity with the requirements laid down in the concession
procedure, or it corresponds to the reasons for exclusion of
tenderers referred to in Section 37, Paragraph two of this
Law;
3) the tendered subcontractor the value of the construction
work to be performed or the services to be provided by which is
at least EUR 10 000 corresponds to the reasons for exclusion of
tenderers referred to in Section 37, Paragraph two of this
Law;
4) as a result of the change of a subcontractor, such
amendments would be made to the tender of a tenderer which, if
they had been initially included therein, would have affected the
selection of tender according to the criteria for tender
evaluation specified in the concession procedure documents.
(4) The public partner shall not agree to the involvement of a
new subcontractor, provided that such changes, if made in the
initial tender, would affect selection of tender according to the
criteria for tender evaluation specified in the concession
procedure documents.
(5) In verifying the conformity of the new subcontractor, the
public partner shall apply the provisions of Section 37 of this
Law and the verification of the reasons for exclusion shall be
carried out on the date when the public partner decides to grant
an authorisation to the successful tenderer (party to the
concession contract) to replace the subcontractor or to engage a
new subcontractor for the performance of the concession contract.
The time periods referred to in Section 37, Paragraph four,
Clauses 2, 3, and 4 of this Law shall be counted from the day
when a request for the change of a subcontractor is submitted to
the public partner.
(6) The public partner shall, within as short period of time
as possible, but not later than within five working days after it
has received all the information and documents necessary for
taking the decision in accordance with the provisions of this
Section, take the decision to permit or refuse change of the
personnel or subcontractors of the tenderer selected in the
concession procedure (a party to the concession contract) or
involvement of new subcontractors in the performance of the
concession contract.
[20 April 2017; 5 May 2022]
Section 64. Opinion of the
Monitoring Authority on Amendments to a Public-private
Partnership Contract
(1) After the parties to a public-private partnership contract
have agreed upon amendments to the public-private partnership
contract, the agreed draft amendments to the public-private
partnership contract shall be sent to the monitoring authority in
order to receive an opinion on whether the risk allocation
between the public partner and the private partner conforms to
the initial contract and is not changed in the interests of the
private partner.
(2) If the opinion of the monitoring authority indicates that
the information included in the agreed draft amendments to the
public-private partnership contract shows that the risk
allocation between the public partner and the private partner is
not changed, each representative of the public partner shall sign
an agreement on the relevant amendments to the concession
contract.
(3) If the opinion of the monitoring authority indicates that
the information included in the agreed draft amendments to the
public-private partnership contract shows that the risk
allocation between the public partner and the private partner is
changed in the interests of the private partner, the
representative of the public partner shall inform the private
partner thereof, and the contracting parties shall re-agree on
the amendments to the public-private partnership contract.
(4) The representative of the public partner shall send the
new agreed draft amendments to the public-private partnership
contract to the monitoring authority in order to receive the
opinion referred to in Paragraph one of this Section.
(5) If the contracting parties fail to agree on amendments to
the public-private partnership contract where the risk allocation
between the public partner and the private partner would
correspond to the initial contract and the interests of the
private partner would not be changed, the public-private
partnership contract shall not be amended or shall be terminated
prior to expiry thereof in accordance with Section 65, Paragraph
three of this Law.
[20 April 2017]
Section 65. Early Termination of the
Public-Private Partnership Contract
(1) The public partner has the right to unilaterally terminate
a public-private partnership contract before its expiry by
sending a written notice to the private partner in the following
cases:
1) in the cases provided for in the contract;
2) when it is necessary for the purpose of the State security,
environmental protection or public health and security;
3) if the public partner has submitted the application for the
termination of its activity to a Commercial Register Office;
4) if a decision has been taken on commencement of a
bankruptcy procedure of a private partner in accordance with the
procedures laid down in the Insolvency Law;
5) if substantial amendments are made to the public-private
partnership contract which are not admissible in accordance with
Section 63, Paragraph one of this Law;
6) if the public-private partnership contract is not concluded
in accordance with the provisions provided for in the
public-private partnership procedure documents or substantial
provisions of the draft public-private partnership contract
included in the public-private partnership procedure documents
are changed;
7) if, at the moment of awarding the public-private
partnership contract, the private partner had conformed to any of
the reasons for exclusion referred to in Section 37, Paragraph
two of this Law and was to be excluded from the procurement
procedure;
8) if the private partner was not supposed to be awarded with
the public-private partnership contract due to a serious
violation of the obligations provided for in the Treaty on
European Union, Treaty on the Functioning of the European Union,
and this Law which has been established by the Court of Justice
of the European Union in accordance with the procedure laid down
in Article 258 of the Treaty on the Functioning of the European
Union.
(2) The private partner has the right to unilaterally
terminate a public-private partnership contract before its expiry
by sending a written notice to the public partner in the
following cases:
1) in cases of violations of the contract provided for in the
contract;
2) if all legal persons as public partners have submitted
applications to a Commercial Register Office for the termination
of their activity;
3) if the decision on commencement of a bankruptcy procedure
against all legal persons as a public partner has been taken in
accordance with the procedures laid down in the Insolvency
Law.
(3) The contracting parties may also terminate a
public-private partnership contract before its expiry upon an
agreement of the contracting parties.
(4) A public-private partnership contract may be also
terminated in cases of force majeure circumstances in accordance
with the Civil Law. Within the meaning of this Law, the force
majeure shall not be considered laws and regulations adopted
during the validity of the public-private partnership contract,
actions of the public administration institutions and the
documents adopted thereby.
(5) A legal person as a public partner may take a decision to
terminate its activity (Section 65, Paragraph two, Clause 2)
during the validity of the public-private partnership contract
only when the founder or shareholder of this legal person:
1) has created a new legal person or transferred the
obligation to fulfil the public partner commitments ensuing from
the concluded public-private partnership contract to another
legal person where he or she is the only founder or
shareholder;
2) continues himself or herself to fulfil the public partner
obligations ensuing from the concluded public-private partnership
contract.
(6) If, in accordance with the procedures laid down in the
Insolvency Law, the decision on the commencement of a bankruptcy
procedure in relation to the legal person as a public partner
(Section 65, Paragraph two, Clause 3) has been taken, the
founder or shareholder of this legal person shall:
1) create a new legal person or transfer the obligation to
fulfil the public partner commitments ensuing from the concluded
public-private partnership contract to another legal person where
he or she is the only founder or shareholder;
2) continues himself or herself to fulfil the public partner
obligations ensuing from the concluded public-private partnership
contract.
[20 April 2017; 5 May 2022]
Section 66. Procedures for the Early
Termination of the Contract
(1) If in the case referred to in Section 65, Paragraph one,
Clause 1 or Paragraph two, Clause 1 of this Law any of the cases
specified in the public-private partnership contract has occurred
due to which the public partner or the private partner may
unilaterally terminate the contract and other contracting party
may prevent it, the relevant public partner or private partner
shall warn in written form the other contracting party that, if
it does not eliminate the violation of the contract within the
time period laid down in the warning, the public partner or the
private partner respectively will exercise the right provided for
in Section 65, Paragraph one, Clause 1 or Paragraph two, Clause 1
of this Law to terminate the contract early. The time period for
the elimination of the violation determined in the warning shall
be such that the particular violation could be eliminated within
this time period.
(2) If in the case referred to in Paragraph one of this
Section the relevant contracting party is not able to prevent the
cause for the termination of the contract specified in the
public-private partnership contract at all or does not prevent
the violation of the contract within the time period indicated in
the warning, the other contracting party shall inform it in
writing of the early termination of the public-private
partnership contract.
(3) The decision on the early termination of the contract, if
it is necessary for the purpose of the State security,
environmental protection or public health and security, shall be
taken by each public partner institution that has taken the
decision on the initiation of the procedure for the receipt of
the contracting right to a public-private partnership contract in
the cases referred to in Section 16, Paragraphs one and two of
this Law.
(4) If the institution referred to in Paragraph three of this
Section has taken the decision on unilateral early termination of
a public-private partnership contract, the representative of the
public partner shall inform the private partner in writing that
the public partner exercises the right provided for in Section
65, Paragraph one, Clause 2 of this Law to unilaterally terminate
the contract before its expiry.
(5) Before the private partner or the public partner has taken
the decision to terminate its activity, it shall inform the other
contracting party of this decision in a timely manner, and also
immediately after the submission of the application to a
Commercial Register Office on the termination of its activity and
the Commercial Register Office has taken the decision to
terminate its activity.
(6) The contracting party that has received the decision
referred to in Paragraph five of this Section shall send to the
other contracting party a notice on unilateral early termination
of the public-private partnership contract in accordance with the
rights provided for in Section 65, Paragraph one, Clause 3 and
Paragraph two, Clause 2 of this Law.
(7) Before the private partner or the public partner takes the
decision to submit the application for insolvency proceedings, it
shall inform the other contracting party thereof in a timely
manner, and also immediately after the submission of the
application to the court and after the court has taken the
decision to declare its insolvency proceedings.
(8) The contracting party that received the court decision on
insolvency of the other contracting party referred to in
Paragraph seven of this Section shall send a notice on unilateral
early termination of the public-private partnership contract to
the other party in accordance with the rights provided for in
Section 65, Paragraph one, Clause 4 or Paragraph two, Clause 3 of
this Law.
(9) A public-private partnership contract may be terminated
early upon agreement of the contracting parties only if the
decision on it is taken by each public partner institution that
in the cases referred to in Section 16, Paragraphs one and two of
this Law has taken the decision on the initiation of the
procedure for the receipt of the contracting rights for a
public-private partnership contract.
(10) In the public-private partnership contract, the
contracting parties shall foresee the time period within which
the contract expires after receipt of a written notice of the
representative of the public partner in the cases referred to in
Paragraphs two, four, six and seven of this Section.
(11) In cases of force majeure circumstances, a public-private
partnership contract shall be terminated early in the cases and
in accordance with the procedure provided for in the Civil Law
and the public-private partnership contract.
(12) The representative of the public partner shall send the
notices referred to in this Section on unilateral early
termination of the public-private partnership contract or
agreement on early termination of the contract to the monitoring
authority.
Section 67. Compensation in the Case
of Early Termination of the Contract
(1) In a public-private partnership contract, the contracting
parties shall agree upon the procedures for the determination and
payment of a compensation when terminating the contract prior to
the expiry thereof which is not in contradiction to the
provisions of this Law and the Civil Law, complying with the
conditions of this Section.
(2) If a public-private partnership contract is terminated
early in the cases referred to in Section 65, Paragraph one,
Clauses 1 (if early termination of the contract is not related to
a violation of the contract committed by the private partner), 2,
5, 6, 7, and 8 of this Law, the private partner shall receive a
compensation consisting of the following:
1) payments for investments made by the private partner
according to the conditions of the contract;
2) payment for the early termination of the contract according
to the conditions of the contract.
(3) If a public-private partnership contract is terminated
early in the cases referred to in Section 65, Paragraph one,
Clauses 1 (if early termination of the contract is related to a
violation of the contract committed by the private partner), 3
and 4 and Paragraph two of this Law, the contracting party
unilaterally terminating the contract before the specified term
shall receive a compensation calculated according to the
conditions of the contract and that may also include payments for
investments made by the private partner.
(4) In the public-private partnership contract, the public
partner may not undertake accidental risk regarding early
termination of the contract in the case referred to in Section
65, Paragraph four of this Law.
[20 April 2017]
Section 68. Availability of the
Contracts
(1) Generally accessible information of a public-private
partnership contract shall be the information that is not a trade
secret according to the Commercial Law.
(2) The complete public-private partnership contract shall be
available to the monitoring authority, State Audit Office,
Ministry of Finance, Ministry of Economics, and also the
competent State institutions in the cases and in accordance with
the procedures laid down in laws and regulations.
(3) Not later than within 10 working days from the day when
the public-private partnership contract or amendments thereto
have entered into effect, the public partner shall post in the
buyer profile the text of the public-private partnership
contract, the text of amendments to the public-private
partnership contract, and the justification for the substantial
amendments to the public-private partnership contract in
accordance with the procedures laid down in laws and regulations,
following the requirements for the protection of trade secret.
The public-private partnership contract and the text of
amendments thereto shall be available in the buyer profile during
the entire duration of the public-private partnership contract,
but not less than 36 months after the day when the public-private
partnership contract has entered into effect.
[20 April 2017]
Section 69. Registration of the
Contracts
[5 May 2022]
Chapter XIV Establishment of a
Special Purpose Entity, Concluding Contracts with the Special
Purpose Entity and Lender's Intervention Right
Section 70. Application of Legal
Provisions in Case of a Special Purpose Entity
If a special purpose entity is established in accordance with
the procedures laid down in this Law, provisions of Chapter XIII
of this Law shall be applied for the conclusion, amendment, or
termination of the public-private partnership contract, complying
with the provisions of this Chapter.
Section 71. Establishment of a
Special Purpose Entity
(1) A special purpose entity shall be established if the
public-private partnership procedure documents provide that the
tenderer determined as a result of this procedure should
establish a special purpose entity or that the tenderer may
establish a special purpose entity.
(2) In the case referred to in Paragraph one of this Section,
each tenderer shall specify the following in its tender:
1) type of a commercial company and the shareholders or
members thereof if the public-private partnership procedure
documents provide that the tenderer should establish a special
purpose entity;
2) whether he or she will establish a special purpose entity
and if will establish - type of a commercial company and the
shareholders or members thereof if the public-private partnership
procedure documents provide that the tenderer may establish a
special purpose entity.
(3) A special purpose entity shall be established in
accordance with the Commercial Law. If the special purpose entity
is a joint stock company, all stocks of the company shall be
registered stocks.
(4) If the tenderer is one person, only this tenderer may be
the founder of the special purpose entity. If the tenderer is an
association of persons, only the persons that are members of such
an association of persons may be the founders of the special
purpose entity.
(5) The founders shall prepare documents of incorporation of
the special purpose entity in such a way that the replacement of
the shareholder or member of the special purpose entity with a
new shareholder or member of the special purpose entity proposed
by the lender and approved by the public partner is ensured in
the cases referred to in Section 73, Paragraph one of this
Law.
(6) The founders of the company may submit the application for
the registration of a special purpose entity in the Commercial
Register provided for in the Commercial Law not earlier than 15
days from the day when the notice on the results of the
public-private partnership procedure has been published on the
website of the Procurement Monitoring Bureau.
[20 April 2017]
Section 72. Conclusion of the
Public-Private Partnership Contract with a Special Purpose
Entity
(1) The representative of the public partner shall conclude a
public-private partnership contract with a special purpose entity
after the Enterprise Register as a Commercial Register Office has
announced the entry on registration of a special purpose entity
in the Commercial Register in accordance with the procedures laid
down in the Commercial Law, complying with the provisions of
Paragraph two of this Section.
(2) The representative of the public partner shall sign the
public-private partnership contract with a special purpose entity
after the founders of the special purpose entity have fulfilled
the requirements of Section 71, Paragraph five of this Law.
(3) If a special purpose entity is established, each public
partner and the special purpose entity shall conclude a
public-private partnership contract.
(4) The public-private partnership contract on behalf of the
special purpose entity shall be concluded by the officials of the
special purpose entity in accordance with the Commercial Law.
Section 73. Procedures for the Early
Termination of the Public-private Partnership Contract Concluded
with a Special Purpose Entity and Calculation of a
Compensation
(1) In addition to the provisions of Section 65, Paragraph one
of this Law, the public partner may also terminate the
public-private partnership contract concluded with a special
purpose entity before its expiry in the following cases:
1) if the only shareholder of the special purpose entity has
submitted an application on the termination of its activity to
the Commercial Register Office;
2) a court has declared insolvency of the only shareholder of
the special purpose entity.
(2) Before taking the decision to terminate its activity, any
shareholder or member of the special purpose entity shall inform
the public partner and the special purpose entity thereof in a
timely manner, and also immediately after submission of the
application on the termination of its activity to a Commercial
Register Office and the Commercial Register Office has taken the
decision to terminate its activity.
(3) Having received the decision from the only shareholder of
the special purpose entity on the termination of its activity
referred to in Paragraph two of this Section, the public partner
shall inform the lender of the private partner thereof to provide
him or her with the possibility to exercise the intervention
right referred to in Section 79, Paragraph one of this Law. If in
accordance with the procedures laid down in Section 80, Paragraph
one of this Law the lender informs that it does not wish to
exercise the intervention right, the public partner shall send a
notice on unilateral early termination of the public-private
partnership contract to the private partner in accordance with
Paragraph one, Clause 1 of this Section.
(4) Before taking the decision to submit a complaint to a
court so that the court would declare his or her insolvency, any
shareholder or member of the special purpose entity shall inform
the public partner and the special purpose entity of this
decision in a timely manner, and also immediately after the
submission of the complaint to the court and the court has taken
the decision on insolvency of this shareholder.
(5) Having received the court decision on insolvency of the
only shareholder referred to in Paragraph four of this Section,
the public partner shall inform the lender of the private partner
thereof to provide it with the possibility to exercise the
intervention right referred to in Section 79, Paragraph one of
this Law. If in accordance with the procedures laid down in
Section 80, Paragraph one of this Law the lender informs that it
does not wish to exercise the intervention right, the public
partner shall send a notice on unilateral early termination of
the public-private partnership contract to the private partner in
accordance with Paragraph one, Clause 2 of this Section.
(6) If in the cases referred to in Paragraph one of this
Section the special purpose entity does not ensure the
replacement of the shareholder or member of the special purpose
entity with the new shareholder or member of the special purpose
entity proposed by the lender and approved by the public partner
in the cases referred to in Section 74 of this Law, each
representative of the public partner shall take the decision on
the termination of the public-private partnership contract in
accordance with Paragraph one, Clause 1 or 2 of this Section and
inform the private partner, the lender, and the monitoring
authority thereof.
(7) If the public-private partnership contract is terminated
early in the case referred to in Paragraphs three and four of
this Section, the provisions of Section 67, Paragraph three of
this Law shall be applied for the calculation of
compensation.
Section 74. Replacement of
Shareholders of the Special Purpose Entity
(1) Cases when a shareholder or a member of the special
purpose entity discontinues to be a shareholder or a member of
this entity or another person becomes a shareholder or a member
of the special purpose entity and procedures for making thereof
shall be determined in the public-private partnership contract in
conformity with the Commercial Law, complying with the provisions
of this Section.
(2) If the public-private partnership contract provides that
the private partner shall perform construction work, the
replacement of the shareholders or members of the special purpose
entity until the moment when the structure provided for in the
contract is put into operation by the acceptance-delivery deed
may be made only after receipt in advance of a written consent of
each representative of the public partner.
(3) If the public-private partnership contract provides that
the private partner shall continue management of the constructed
structure, the consent of the representative of the public
partner is not required for the replacement of the shareholders
or members of the special purpose entity following the putting
into operation of the structure provided for in the contract
unless the public-private partnership contract prescribes
otherwise.
(4) If the public-private partnership contract is a public
service contract or a services concession contract not providing
for construction work, the replacement of the shareholders or
members of the special purpose entity may be made only after
receipt in advance of a written consent of each representative of
the public partner unless the public-private partnership contract
prescribes otherwise.
Chapter XV Information Exchange
Agreement
Section 75. Entering into an
Information Exchange Agreement
(1) If the private partner has submitted a submission of his
or her lender including a draft information exchange agreement to
the public partner, the public partner shall enter into an
information exchange agreement simultaneously with the
public-private partnership contract.
(2) The information exchange agreement shall remain valid
until the private partner fulfils all the obligations ensuing
from the financing agreement towards the lender unless the
contracting parties agree otherwise.
Section 76. Information to be
Included in the Information Exchange Agreement
The following information shall be indicated in the
information exchange agreement:
1) the procedures by which the contracting parties shall
inform each other of violations of the obligations of the
public-private partnership contract;
2) the procedures by which the lender informs the public
partner of violations of the obligations of the credit agreement
of the private partner;
3) the procedures for exercising the intervention right of the
lender of the public-private partnership contract in accordance
with Sections 79, 80, 81, 82, and 83 of this Law;
4) the procedures determined in the public-private partnership
contract by which the performance of the contract is continued
until the conclusion of the new public-private partnership
contract referred to in Section 82 of this Law if the lender
exercises the intervention right;
5) actions if the lender waives the intervention right or
fails to find such a private partner with whom the public partner
could conclude a new public-private partnership contract;
6) actions upon early termination of the public-private
partnership contract in the cases laid down in Section 65,
Paragraph one, Clause 2 and Paragraphs two, three, and four of
this Law;
7) the procedures by which the contracting parties shall
exchange other information;
8) other provisions that are considered as necessary by the
contracting parties.
Chapter XVI Activities with the
Public Partner Resources
Section 77. Actions with the Public
Partner Resources
(1) The private partner may not alienate the public partner
resources specified in the public-private partnership contract
that have been transferred to the private partner for use,
including invest in equity capital of other capital companies,
pledge or encumber in another way or perform any other activities
as a result of which these resources could become property of
another person.
(2) If the court has declared insolvency proceedings of the
private partner in accordance with the Insolvency Law, the public
partner resources referred to in Paragraph one of this Section
shall be the property of third parties and shall not be included
in the property of the private partner as debtor to which the
creditors' claims are to be made in the insolvency
proceedings.
(3) In case of failure to fulfil the obligations of the
private partner, the recovery according to executive documents
shall not be enforced to the public partner resources referred to
in Paragraph one of this Section unless the international
documents prescribe otherwise.
(4) If activity of the private partner is terminated, the
liquidator may prepare the liquidation closing financial account
and the property division plan only after the public partner
resources referred to in Paragraph one of this Section have been
transferred back to the public partner or the new private partner
in accordance with the procedures laid down in the public-private
partnership contract.
(5) If a public-private partnership contract is terminated
early or the validity of the contract expires, the public partner
resources referred to in Paragraph one of this Section shall be
transferred back to the public partner in accordance with the
procedures laid down in the public-private partnership
contract.
(6) If a public-private partnership contract is terminated
early or the validity of the contract expires, the property newly
created during the fulfilment of the public-private partnership
contract shall be transferred to the public partner in the cases
and in accordance with the procedures laid down in the
public-private partnership contract.
Section 78. Corroboration of
Property Rights to the Public Partner Resources
(1) For the validity period of a public-private partnership
contract, the private partner may corroborate the public-private
partnership contract or individual encumbrances ensuing from the
contract to the immovable property that is the public partner
resources referred to in Section 77, Paragraph one of this Law in
the Land Register.
(2) If a public-private partnership contract expires in the
time period provided for therein, the corroboration in the Land
Register referred to in Paragraph one of this Section shall be
extinguished based on a submission of the representative of the
relevant public partner.
(3) If a public-private partnership contract is terminated
early in the cases referred to in Section 65 or Section 73,
Paragraph one of this Law, the corroboration in the Land Register
referred to in Paragraph one of this Section shall be
extinguished based on a submission of the representative of the
relevant public partner to which the document referred to in
Section 66 or Section 73, Paragraph six of this Law that has been
the basis for the early termination of the agreement shall be
attached.
Chapter XVII Lender's Intervention
Right and Procedures for the Conclusion of a New Contract
Section 79. Intervention Right
(1) In order to ensure continuation of a public-private
partnership contract in the cases referred to in Section 65,
Paragraph one, Clauses 1, 3, and 4 and Section 73, Paragraph one
of this Law and to allow the lender to continue financing of the
performance of the public-private partnership contract and to
recover the funds lent to the private partner for this purpose,
the lender shall have the intervention right by proposing the
following to the public partner:
1) a new private partner in the cases referred to in Section
65, Paragraph one, Clauses 1, 3, and 4 of this Law;
2) a new private partner in the cases referred to in Section
73, Paragraph one of this Law.
(2) Exercising of the intervention right referred to in
Paragraph one of this Section may be initiated after the
representative of the public partner has taken the decision to
terminate the relevant public-private partnership contract early
in the cases referred to in Section 65, Paragraph one, Clauses 1,
3, and 4 and has informed the private partner and the lender
thereof. If the relevant public-private partnership contract is
concluded by several public partners, the contract may be
terminated upon a joint decision of the representatives of all
public partners.
(3) A public-private partnership contract and information
exchange agreement may provide that the lender shall also have
the intervention right when any shareholder or member of a
special purpose entity is replaced. In this case the procedures
by which the lender uses the intervention right and each
representative of a public partner gives the consent to the
replacement of a shareholder or member of the special purpose
entity shall be also provided for in the contract.
Section 80. Procedures for
Exercising the Intervention Right
(1) If the representative of the public partner has informed
the private partner and its lender of the decision referred to in
Section 79, Paragraph two of this Law or the notice referred to
in Section 73, Paragraph three or five of this Law, the lender
shall inform the representative of the public partner
representative of whether he or she wishes to use the
intervention right within one month.
(2) The lender shall exercise the intervention right in
accordance with the procedures and within the time periods
specified in the information exchange agreement. The time period
laid down in the information exchange agreement for exercising
the lender's intervention right complying with the provisions of
Section 81, Paragraph five of this Law may not exceed six months
from the day when the notice of the public partner referred to in
Section 79, Paragraph two of this Law is received.
Section 81. Tenderer Selected by the
Lender and its Evaluation
(1) The tenderer selected by the lender shall meet the
requirements and criteria determined for the tenderers in the
partnership procurement procedure or concession procedure taking
into consideration the stage of the performance of the particular
public-private partnership contract.
(2) The requirements and criteria to be met by the lender's
proposed tenderer taking into consideration the stage of
performance of the particular public-private partnership
contract, and also the documents that shall certify the
conformity of the tenderer with these requirements and criteria
shall be determined by the public partner in the notice referred
to in Section 79, Paragraph two or Section 73, Paragraph three or
five of this Law.
(3) The representative of the public partner shall evaluate
the documents submitted by the lender's proposed tenderer in
accordance with the same procedures as such documents were
evaluated when the tenderer with whom the public partner
concluded a public-private contract was determined, considering
legal norms that were in force on the day when the documents of
the lender's proposed tenderer are evaluated.
(4) The representative of the public partner may refuse to
conclude a new public-private partnership contract with the
lender's proposed tenderer only if the tenderer does not meet the
requirements and criteria referred to in Paragraph two of this
Section.
(5) If in the case referred to in Paragraph four of this
Section the representative of the public partner refuses to
conclude a new public-private partnership contract with the
lender's proposed tenderer, the lender may propose another
tenderer one more time within one month after receipt of the
refusal referred to in Paragraph four of this Section.
Section 82. Conclusion of a New
Public-Private Partnership Contract
(1) The new public-private partnership contract shall be
concluded on the same subject-matter of the contract and in
accordance with the same provisions as the initial public-private
partnership contract, taking into consideration the stage of the
performance of the particular contract.
(2) The representative of the public partner shall attach the
new draft public-private partnership contract to the notice
referred to in Section 79, Paragraph two of this Law by
specifying the immutable provisions of the contract so that the
lender's proposed tenderer could get acquainted with the draft
contract, taking into consideration the provisions of Paragraph
one of this Section.
(3) Prior to sending the new draft concession contract to the
lender, the representative of the public partner shall send the
draft contract to the monitoring authority to receive an opinion
on the conformity of risk allocation between the public partner
and the private partner with the concession contract. The
monitoring authority shall give its opinion on the new draft
concession contract in accordance with the procedures laid down
in Section 34 of this Law.
(4) Negotiations with the lender's proposed tenderer on the
draft public-private partnership contract shall be conducted in
accordance with the procedures laid down in Section 52 of this
Law.
(5) The representative of the public partner shall send the
new public-private partnership contract signed by the contracting
parties to the monitoring authority.
Section 83. Ensuring the Performance
of a Public-Private Partnership Contract
(1) In the public-private partnership contract the contracting
parties shall agree upon the procedures by which the performance
of the contract shall be continued until:
1) the new public-private partnership contract referred to in
Section 82 of this Law is concluded, if the lender uses the
intervention right;
2) the termination of the contract in the cases referred to in
Section 65 and Section 73, Paragraph one of this Law.
(2) In the case referred to in Paragraph one, Clause 1 of this
Section, the contracting parties shall agree that the private
partner or the public partner shall continue fulfilling the
obligations of the private partner determined in the
public-private partnership contract until entering into a new
agreement.
(3) In the case referred to in Paragraph one, Clause 1 of this
Section the contracting parties may agree that the lender shall
continue fulfilling the obligations of the private partner
determined in the public-private partnership contract until
entering into a new agreement if it is also provided for in the
information exchange agreement.
Division D
Institutional Partnership
Chapter XVIII General Provisions
of the Institutional Partnership
Section 84. Creation of a Joint
Venture
A joint venture shall be created:
1) by the public partner and the private shareholder
establishing a new capital company in accordance with the
Commercial Law and complying with the State Administration
Structure Law;
2) by the private shareholder acquiring the capital shares in
a capital company of a public entity in accordance with the
provisions on attraction of private capital of the Law on
Governance of Capital Shares of a Public Entity and Capital
Companies, paying for capital shares in cash (hereinafter - the
reorganisation of a capital company of a public entity).
[20 April 2017]
Section 85. Application of Legal
Provisions in Case of a Joint Venture
(1) If the public partner concludes a partnership procurement
contract together with a joint venture as a private partner, the
following shall be applied for the determination of a private
shareholder of the joint venture:
1) the provisions of the Public Procurement Law regarding an
open procedure, restricted procedure, competitive procedure with
negotiation, competitive dialogue, innovation partnership
procedure, and procurements of the services referred to in Annex
2 to the Public Procurement Law, as provided for in this
Division;
2) the provisions of the Law on the Procurement of Public
Service Providers regarding an open procedure, restricted
procedure, negotiated procedure by publishing an invitation to
participate, competitive dialogue, innovation partnership
procedure, and procurements of the services referred to in Annex
2 to the Public Procurement Law, as provided for in this
Division.
(2) If the public partner concludes a concession contract with
a joint venture as a private partner, the concession procedures
referred to in Section 17, Paragraphs one and seven of this Law
shall be applied for the determination of a private shareholder
of the joint venture, as provided for in this Division.
(3) In case of institutional partnership, the provisions of
Division C of this Law shall be applied by complying with the
provisions of this Division.
(4) Following the establishment of a joint venture the
public-private partnership procedures shall not be applied again
for the conclusion of the public-private partnership
contract.
[20 April 2017]
Chapter XIX Determination of the
Private Shareholder of a Joint Venture
Section 86. Application of
Partnership Procurement Procedures in Case of Institutional
Partnership
(1) If a public partner applies the provisions of the Public
Procurement Law for the determination of a private shareholder of
a joint venture, the following shall be indicated in the relevant
documents in addition to the information determined in the Public
Procurement Law:
1) that for the performance of a partnership procurement
contract the public partner (one or several) and the private
shareholder will establish a capital company or reorganise a
State or local government capital company into a joint venture
with which each public partner as a private partner concludes the
partnership procurement contract;
2) provisions for the allocation of capital shares in the
joint venture;
3) conditions for the activity of the joint venture and the
potential thereof to undertake additional tasks during the
performance of the partnership procurement contract;
4) actions with the assets of the joint venture following the
expiry of the partnership procurement contract;
5) provisions for the termination of the activity of the joint
venture;
6) provisions of the draft documents referred to in Paragraph
two or three of this Section that may not be amended during the
harmonization thereof.
(2) If, for the performance of a partnership procurement
contract, the public partner and the private partner establish a
capital company, the following shall be attached in addition to
the relevant document specified in the Public Procurement
Law:
1) draft memorandum of association of the joint venture;
2) draft articles of association of the joint venture;
3) draft shareholder contract;
(3) If for the performance of a partnership procurement
contract the public partner and the private partner reorganise a
State or local government capital company, the following shall be
attached in addition to the relevant document determined in the
Public Procurement Law:
1) provisions for increasing the equity capital of the State
or local government capital company;
2) draft articles of association of the joint venture;
3) draft shareholder contract;
Section 87. Regulations of the
Concession Procedures in Case of Institutional Partnership
(1) If the public partner applies any of the concession
procedures referred to in Section 17, Paragraphs one and seven of
this Law for the determination of a private shareholder of a
joint venture, the following shall be specified in the
regulations in addition to the information referred to in Section
33 of this Law:
1) that for the performance of a concession contract the
public partner (one or several) and the private shareholder will
establish a joint venture or reorganise a State or local
government capital company into a joint venture with which each
public partner as a private partner concludes the concession
contract;
2) provisions for the allocation of capital shares in the
joint venture;
3) conditions for the activity of the joint venture and the
potential thereof to undertake additional tasks during the
performance of the concession contract;
4) actions with the assets of the joint venture after the
expiry of the concession contract;
5) provisions for the termination of the activity of the joint
venture;
6) provisions of the draft documents referred to in Paragraph
two or three of this Section that may not be amended during the
harmonization thereof.
(2) If, for the performance of a concession contract, the
public partner and the private partner establish a joint venture,
the following shall be attached to the regulations in addition to
the referred to in Section 33, Paragraph eleven of this Law:
1) draft memorandum of association of the joint venture;
2) draft articles of association of the joint venture;
3) draft shareholder contract;
(3) If, for the performance of a concession contract, the
public partner and the private partner reorganise a State or
local government capital company, the following shall be attached
to the regulations in addition to the referred to in Section 33,
Paragraph eleven of this Law:
1) provisions for increasing the equity capital of the State
or local government capital company;
2) draft articles of association of the joint venture;
3) draft shareholder contract;
(4) If a public partner applies a competitive dialogue for the
determination of a private shareholder of a joint venture, the
documents referred to in Paragraphs two and three of this Section
may be not attached to the regulations. In this case the
aforementioned documents shall be attached to the invitation
referred to in Section 47, Paragraph eight of this Law specifying
the provisions of the referred to draft documents that may not be
amended during the harmonization thereof.
[20 April 2017]
Section 88. Termination or
Suspension of a Concession Procedure in Case of Institutional
Partnership
If a public partner wishes to conclude a public-private
partnership contract with a joint venture, the concession
procedure commission shall take the decision to terminate the
relevant concession procedure (Section 36, Paragraph one) also in
the following cases:
1) if, during the negotiations on the draft concession
contract and the documents attached to the regulations referred
to in Section 87, Paragraph two or three of this Law, the
concession procedure commission does not reach an agreement on
any of these documents with any of the tenderers in accordance
with the procedures laid down in Section 52 of this Law;
2) if a joint venture is not established after the agreement
on the documents referred to in Section 87, Paragraphs two and
three of this Law has been reached in accordance with the
procedures laid down in Section 89 of this Law.
Section 89. Negotiations on the
Draft Concession Contract and Other Documents
(1) When negotiating on a draft concession contract in
accordance with the procedures laid down in Section 52 of this
Law, negotiations on the documents referred to in Section 87,
Paragraph two or three of this Law shall be conducted
simultaneously.
(2) The negotiations may be held only on those provisions of
the draft documents referred to in Paragraph one of this Section
which are not determined as immutable in the Regulations.
Section 90. Conclusion of a
Memorandum of Association of a Joint Venture and a Public-Private
Partnership Contract
(1) Each representative of the public partner shall conclude a
memorandum of association of a joint venture with the private
partner not earlier than 15 days following the day when the
concession ward notice has been published on the website of the
Procurement Monitoring Bureau.
(2) Each representative of the public partner shall conclude a
public-private partnership contract with a joint venture after
the Enterprise Register as a Commercial Register Office has
published the entry on registration of the joint venture in the
Commercial Register in accordance with the procedures laid down
in the Commercial Law.
[20 April 2017]
Section 91. Final Report of the
Commission in Case of Institutional Partnership
In addition to the documents referred to in Section 55,
Paragraph six of this Law, the concession procedure commission
shall also attach the documents referred to in Section 87,
Paragraph two or three of this Law to the final report.
Chapter XX Public-Private
Partnership Contract in Case of Institutional Partnership
Section 92. Public-Private
Partnership Contract in Case of Institutional Partnership
(1) In case of institutional partnership, a public-private
partnership contract shall, in addition to the information laid
down in Section 62 of this Law, specify the following:
1) that upon expiry of the public-private partnership contract
(also when it is terminated early in accordance with the
procedures laid down in this Law) the activity of the joint
venture shall be terminated in accordance with the procedures
laid down in the articles of association thereof;
2) allocation of capital shares in the joint venture and the
manner according to which and the date until which such a capital
share allocation will be achieved;
3) the conditions as regards the activity of the joint venture
and the potential thereof to undertake additional tasks during
the fulfilment of the public-private partnership contract;
4) action with the assets of the joint venture following the
public-private partnership contract is executed or upon early
termination thereof;
5) the procedures for determining the liquidation quota of the
joint venture in accordance with Section 96, Paragraph two of
this Law;
6) the procedures for the payment of compensations if, upon
termination of the activity of the joint venture, the liquidation
quota does not cover the amount of compensation ensuing from this
agreement;
7) the procedures by which the private shareholder of the
joint venture shall be reimbursed for decrease in the liquidation
quota in the case referred to in Section 117, Paragraph two of
this Law.
(2) The public-private partnership contract shall be signed on
behalf of the joint venture by its executive board.
(3) In accordance with Section 61, Paragraph two of this Law,
each representative of the public partner shall sign the
public-private partnership contract on behalf of the public
partner.
Section 93. Amending the Contract in
Case of Institutional Partnership
Amendments to a public-private partnership contract in case of
institutional partnership shall be made in accordance with
Sections 63 and 64 of this Law.
Section 94. Early Termination of the
Contract in Case of Institutional Partnership
In case of institutional partnership, the public partner has
the right to unilaterally terminate the public-private
partnership contract before its expiry also in the following
cases in addition to the cases referred to in Section 65,
Paragraph one of this Law:
1) if the only private shareholder of the joint venture has
submitted an application to a Commercial Register Office on the
termination of its activity;
2) if the court has declared the insolvency proceedings of the
only private shareholder of the joint venture.
Section 95. Procedures for the Early
Termination of the Contract in Case of Institutional
Partnership
(1) Before the private partner of the joint venture has taken
the decision to terminate its activity, it shall inform the
public partner of this decision in a timely manner, and also
immediately after the submission of the application for the
termination of its activity to a Commercial Register Office and
when the Commercial Register Office has taken the decision to
terminate the activity of this shareholder.
(2) Having received the decision from the private shareholder
of the joint venture on termination of the activity thereof
referred to in Paragraph one of this Section, the public partner
shall inform the lender of the private partner thereof to provide
it with the possibility to exercise the intervention right. If in
accordance with the procedures laid down in Section 100,
Paragraph one of this Law the lender informs that it does not
wish to exercise the intervention right, the public partner shall
send a notice on unilateral early termination of the
public-private partnership contract to the private partner in
accordance with Section 94, Clause 1 of this Law.
(3) Before taking the decision to submit a complaint to a
court so that the court would declare its insolvency, the private
shareholder of the joint venture shall inform the public partner
of this decision in a timely manner, and also immediately after
the submission of the complaint to the court and after the court
has taken the decision on the declaration of insolvency of this
shareholder.
(4) Having received the court decision on the declaration of
insolvency of the private shareholder of the joint venture
referred to in Paragraph three of this Section, the public
partner shall inform the lender of the private partner thereof to
provide it with the possibility to exercise the intervention
right. If in accordance with the procedures laid down in Section
100, Paragraph one of this Law the lender informs that it does
not wish to exercise the intervention right, the public partner
shall send a notice on unilateral early termination of the
public-private partnership contract to the private partner in
accordance with Section 94, Clause 2 of this Law.
Section 96. Compensation for the
Early Termination of the Contract in Case of Institutional
Partnership
(1) If a public-private partnership contract is terminated
early in the cases referred to in Sections 65 and 94 of this Law,
compensations shall be determined and paid by the shareholders
receiving the joint venture liquidation quota in accordance with
the Commercial Law.
(2) When determining the liquidation quota of a joint venture
in the case referred to in Paragraph one of this Section,
justification for the early termination of the public-private
partnership contract, investments of the shareholders in the
equity capital of the joint venture and the provisions of Section
67 of this Law shall be taken into consideration.
Section 97. Availability of the
Contracts and other Documents
(1) Memorandum of association of a joint venture and
provisions for increasing the equity capital of a State or local
government capital company shall be generally accessible in
accordance with the procedures laid down in the Commercial
Law.
(2) Shareholder contract shall be accessible to the
authorities specified in Section 68, Paragraph two of this
Law.
Chapter XXI Information Exchange
Agreement and Lender's Intervention Right in Case of
Institutional Partnership
Section 98. Information Exchange
Agreement in Case of Institutional Partnership
(1) In case of institutional partnership, an information
exchange agreement shall be entered into by a public partner and
a lender in accordance with the procedures laid down in Sections
75 and 76 of this Law.
(2) In case of institutional partnership, the following shall
be indicated in an information exchange agreement:
1) the information referred to in Section 76, Clauses 1, 2, 5,
6, 7, and 8 of this Law;
2) the procedures for exercising the intervention right of the
public-private partnership contract in accordance with Section
100 of this Law;
3) actions if the lender waives the intervention right or
fails to find a new private shareholder of a joint venture.
Section 99. Intervention Right in
Case of Institutional Partnership
(1) In addition to the cases referred to in Section 79,
Paragraph one of this Law, the lender shall also have the
intervention right by proposing a new private shareholder of a
joint venture to the public partner also in the cases referred to
in Section 94 of this Law.
(2) In order to ensure exercising of the lender's intervention
right, the representative of the public partner shall send a
notice and offer the lender to exercise the intervention right in
the cases referred to in Section 94 of this Law in accordance
with the procedures laid down in Section 95, Paragraph two or
four of this Law.
Section 100. Procedures for
Exercising the Intervention Right in Case of Institutional
Partnership
(1) The lender shall exercise the intervention right in the
cases referred to in Section 79, Paragraph one of this Law in
accordance with the procedures laid down in Section 80 of this
Law.
(2) In the cases referred to in Section 94 of this Law, the
lender shall inform the representative of the public partner of
whether he or she wishes to exercise the intervention right
within one month after receipt of the notice referred to in
Section 95, Paragraph two or four of this Law.
(3) In case of institutional partnership, the lender shall
exercise the intervention right in accordance with the procedure
and within the time periods specified in the information exchange
agreement by complying with Section 80, Paragraph two of this
Law.
Section 101. Lender's Proposed
Private Shareholder and the Evaluation thereof
(1) The lender's proposed private shareholder shall meet the
requirements and criteria determined for the tenderers of a
private shareholder of the joint venture who have been determined
in a partnership procurement procedure or concession procedure,
taking into consideration the stage of performance of the
particular public-private partnership contract.
(2) The public partner shall specify the requirements and
criteria the lender's proposed private shareholder shall meet,
taking into consideration the stage of performance of the
public-private partnership contract, and also the documents that
shall certify the conformity of a tenderer to these requirements
and criteria in the notice referred to in Section 99, Paragraph
two of this Law.
(3) The representative of the public partner shall evaluate
the documents submitted by the lender's proposed private
shareholder in accordance with the same procedure by which the
documents were evaluated when the private shareholder with whom
the public partner established a joint venture was determined,
taking into consideration legal provisions in force on the day
when the documents of the lender's proposed private shareholder
are evaluated.
(4) The representative of the public partner may refuse the
lender's proposed private shareholder becoming a shareholder of
the joint venture only if he or she does not meet the
requirements and criteria referred to in Paragraph two of this
Section.
(5) If in the case referred to in Paragraph four of this
Section the representative of the public partner does not agree
that the lender's proposed private shareholder becomes a
shareholder of the joint venture, the lender may propose another
private shareholder one more time within one month after receipt
of the refusal referred to in Paragraph four of this Section.
Section 102. Replacement of a
Private Shareholder of a Joint Venture
(1) If the representative of the public partner has no
objections against the lender's proposed private shareholder, the
representative of the public partner shall take the decision that
the lender's proposed private shareholder becomes the private
shareholder of the joint venture and shall inform thereof:
1) the lender;
2) the lender's proposed private shareholder;
3) the private shareholder of the joint venture;
4) the executive board of the joint venture;
5) the monitoring authority.
(2) The lender's proposed private shareholder shall become a
shareholder of the joint venture by fulfilling the requirements
specified in Section 112 of this Law.
(3) The lender's proposed private shareholder shall become a
shareholder of the joint venture in accordance with the
procedures laid down in the Commercial Law by signing the
contract of the shareholders of the joint venture and an
agreement on joining the documents of incorporation of the joint
venture.
(4) The public partner shall attach the draft agreement on
amendments to the memorandum of association and the draft
contract of shareholders to the notice referred to in Section 99,
Paragraph two of this Law so that the lender's proposed private
shareholder could get acquainted with the amendments to the
memorandum of association and shareholder contract.
Chapter XXII Establishment of a
Joint Venture
Section 103. Provisions for the
Establishment of a Joint Venture
(1) When establishing a joint venture, the entire equity
capital of the joint venture determined in the memorandum of
association of the joint venture shall be signed and paid up
until submitting the application for registration.
(2) Until submitting the application for registration to the
Commercial Register the equity capital of the joint venture shall
be paid only in cash.
(3) Each public partner and the private shareholder shall
invest the resources with which they participate in the
performance of a public-private partnership contract in the
equity capital of the joint venture after the joint venture is
registered in the Commercial Register if it is provided for in
the relevant contract.
(4) Each public partner and the private shareholder as
shareholders of the joint venture shall also sign the shareholder
contract simultaneously with documents of incorporation of the
joint venture (memorandum of association and articles of
association).
Section 104. Attraction of the
Private Capital to a State or Local Government Capital
Company
(1) The private capital shall be attracted to a capital
company of a public entity in accordance with the provisions of
the Law on Governance of Capital Shares of a Public Entity and
Capital Companies by complying with the conditions of this
Section.
(2) If, when taking a decision on the initiation of a
public-private partnership procedure, the institution referred to
in Section 16, Paragraph one, Clauses 1 and 2 of this Law wishes
to establish a joint venture by attracting the private capital to
a capital company of a public entity, it shall specify in the
decision referred to in Section 16, Paragraph six of this Law the
capital company of the public entity to which the private capital
will be attracted.
(3) The decision referred to in Paragraph two of this Section
shall replace the Cabinet order or the decision of the highest
decision-making institution of the derived public entity to
attract the private capital to a capital company of the public
entity provided for in the Law on Governance of Capital Shares of
a Public Entity and Capital Companies.
(4) After the joint venture has been registered in the
Commercial Register, the private shareholder of the joint venture
together with each public partner as a shareholder of the joint
venture shall sign the contract of shareholders.
[20 April 2017]
Section 105. Memorandum of
Association of a Joint Venture
The following shall be specified in the memorandum of
association of a joint venture in addition to that provided in
the Commercial Law:
1) purpose for the establishment of a joint venture - the
joint venture is established for the performance of the
public-private partnership contract that will be concluded by the
public partner and the joint venture;
2) harmonized provisions of the draft public-private
partnership contract the performance of which depends on the
activities of the private partner of the joint venture;
3) that the activity of the joint venture shall be terminated
if the public-private partnership contract concluded by it
expires, (also if it is terminated prior to the expiry thereof in
accordance with the procedures laid down in this Law), and also
the procedures by which the joint venture shall take the decision
on termination of its activity;
4) that in case of termination of the activity of the joint
venture, the liquidation quota of each shareholder shall be
determined in accordance with the procedure determined in the
public-private partnership contract in case of complete
performance or early termination of this contract;
5) the procedures laid down in Section 102 of this Law in
accordance to which the private shareholder of the joint venture
shall be replaced if the lender exercises the intervention right
in accordance with the procedures laid down in Section 100 of
this Law and proposes another private shareholder instead of the
existing private shareholder of the joint venture.
Section 106. Articles of Association
of a Joint Venture
(1) The following shall be specified in the articles of
association of a joint venture in addition to that provided in
the Commercial Law:
1) the purpose of the activity of the joint venture specified
in Section 105, Clause 1 of this Law;
2) the types of commercial activities of the joint venture
that meet the provisions of the public-private partnership
contract;
3) the information referred to in Section 105, Clauses 2, 3,
4, and 5 of this Law;
4) that in case of the death of the private shareholder the
capital shares shall be transferred to the joint venture.
(2) If a joint venture is established by reorganising a State
or local government capital company, the information referred to
in Paragraph one of this Section shall be also specified in the
amendments to the articles of association of the State or local
government capital company.
Section 107. Contract of
Shareholders of a Joint Venture
(1) The contract of shareholders of a joint venture shall
specify the following:
1) the information referred to in Section 105, Clauses 2, 3,
4, and 5 of this Law;
2) the action of the shareholders of the joint venture to
ensure compliance with Sections 108, 109, 110, 111, 112, 113,
114, 115, 116, 117, and 118 of this Law in the activity of the
joint venture;
3) the exercising of the right of the shareholders of the
joint venture to facilitate the performance of the public-private
partnership contract;
4) other provisions considered by the shareholders as
necessary to be included in the contract that are not in
contradiction with this Law, the memorandum of association of the
joint venture, and the articles of association.
(2) The contract of shareholders of a joint venture shall
become invalid if any of the contracting parties is no longer a
shareholder of the joint venture.
Chapter XXIII Particularities of
the Activity of a Joint Venture
Section 108. Activity of a Joint
Venture
(1) During the performance of a public-private partnership
contract, the joint venture is entitled to be engaged in other
types of commercial activity not provided for in the contract if
it does not impede successful performance of the public-private
partnership contract and is specified in the public-private
partnership contract, taking into consideration the provisions of
the State Administration Structure Law.
(2) If during the performance of a public-private partnership
contract the joint venture wishes to perform other type of
commercial activity and it meets the provisions of Paragraph one
of this Section, it shall be decided by the meeting of
shareholders of the joint venture. The decision shall be
considered taken if all shareholders of the joint venture pass
their votes for it.
Section 109. Capital Shares and
Shareholders of a Joint Venture as a Limited Liability
Company
If the joint venture is a limited liability company:
1) the private shareholder of a joint venture may encumber his
or her capital shares only in favour of the lender, if
encumbering of shares is not prohibited in the articles of
association;
2) in case of the death of a private shareholder of the joint
venture, his or her capital shares shall be transferred to the
joint venture and the heirs of this shareholder shall receive
compensation for the capital shares in accordance with the
procedures laid down in the Commercial Law;
3) a shareholder of the joint venture may not be excluded from
the company.
Section 110. Securities of a Joint
Venture as a Joint Stock Company
If the joint venture is a joint stock company:
1) all shares of the company shall be registered shares;
2) the company may not issue preference shares;
3) it may not issue convertible bonds or other securities that
may be exchanged for the shares of this company.
Section 111. Transfer of the Capital
Shares of the Private Shareholder to the Joint Venture
(1) If the lender exercises the intervention right referred to
Section 99, Paragraph one of this Law and proposes another
private shareholder instead of the existing private shareholder
of the joint venture in accordance with the procedures laid down
in Section 100, Paragraph two of this Law so that the private
partner would continue to perform the public-private partnership
contract, the capital shares of such a private shareholder of the
joint venture shall be transferred to the joint venture.
(2) After receipt of the decision referred to in Section 102,
Paragraph one of this Law, the executive board of the joint
venture shall make an entry in the shareholder register or
stockholder register of the joint venture (hereinafter - the
shareholder register) on the transfer of the capital shares to
the joint venture in accordance with the procedures laid down in
the Commercial Law.
(3) In the case referred to in Paragraph one of this Section,
the joint venture has the obligation to pay compensation to the
former shareholder of the joint venture in accordance with the
liquidation quota he or she would receive if the activity of the
joint venture were terminated at the moment of transferring the
capital shares.
(4) The liquidation quota referred to in Paragraph three of
this Section shall be calculated in accordance with the
procedures laid down in Section 96 of this Law.
Section 112. Alienation of Capital
Shares of a Joint Venture to the New Private Shareholder
(1) A joint venture shall alienate the capital shares referred
to in Section 111, Paragraph one of this Law to the lender's
proposed private shareholder determined in the decision referred
to in Section 102, Paragraph one of this Law by concluding a
contract with him or her where the following information shall be
indicated:
1) amount to be paid for the capital shares;
2) terms of payment;
3) other provisions of the contract.
(2) After the contract referred to in Paragraph one of this
Section has been concluded, the executive board of the joint
venture shall register the new private shareholder in the
shareholders register of the joint venture in accordance with the
procedures laid down in the Commercial Law.
(3) The new private shareholder shall pay the amount
corresponding to the liquidation quota referred to in Section
111, Paragraph three of this Law for the capital shares referred
to in Paragraph one of this Section.
(4) Prior to registration of the joint venture in the
shareholder register each public partner of the joint venture and
the new private shareholder shall sign the agreement on joining
the documents of incorporation and the new shareholder
contract.
Section 113. Meeting of Shareholders
of a Joint Venture
(1) A meeting of shareholders of a joint venture shall have
legal power when all shareholders of the joint venture
participate in it.
(2) Each capital share of a joint venture shall grant one vote
to the shareholder.
(3) A meeting of shareholders of a joint venture may take a
decision on making amendments to the articles of association of a
joint venture, changes in the equity capital, reorganisation of a
joint venture, entering into, amendment or termination of a group
of companies agreement, merging of a company, agreement upon
merging and termination or continuation of the activity by the
votes determined in the articles of association if each public
partner as a shareholder of the joint venture pass his or her
vote for it.
Section 114. Representation of the
Public Partner in the Management Bodies of a Joint Venture
(1) Irrespective of the amount of the owned capital shares in
a joint venture each public partner shall have at least one seat
as a member of the executive board and, if the joint venture has
a supervisory board, at least one seat as a member of the
supervisory board.
(2) The procedures by which the joint venture ensures the
provisions referred to in Paragraph one of this Section shall be
determined in the articles of association of the joint
venture.
Chapter XXIV Termination of the
Activity of a Joint Venture
Section 115. Basis for the
Termination of the Activity of a Joint Venture
Activity of a joint venture shall be terminated:
1) by a court ruling;
2) upon commencement of a bankruptcy procedure;
3) if the public-private partnership contract concluded by the
public partner and the joint venture expires.
Section 116. Closing Financial
Statement and Property Division Plan
The liquidation closing financial statement of a joint venture
and the plan for the division of the remainder of the property of
the company shall be verified by a certified auditor.
Section 117. Division of the
Remainder of the Property of a Joint Venture
(1) Upon termination of the activity of a joint venture, the
property of the company shall be divided within the framework of
the liquidation quota so that the public partner resources which
the public partner has invested in the equity capital of the
joint venture would be returned to the public partner together
with the permanent investments.
(2) If the value of the liquidation quota pertaining to the
public partner is smaller than the value of the public partner
resources and the permanent investments referred to in Paragraph
one of this Section, the procedures for compensating the decrease
of the liquidation quota to the private shareholder of the joint
venture shall be provided for in the public-private partnership
contract.
Section 118. Continuation of the
Activity of a Joint Venture
Shareholders of a joint venture may take the decision to
continue the activity of the joint venture only if the
institution referred to in Section 16, Paragraph one or two of
this Law has previously taken a decision thereon and all
shareholders of the joint venture agree thereto.
Chapter XXIV Other Provisions
[20 April 2017]
Section 119. Application of the
Nomenclature of Construction Work
If the CPV data of the nomenclature of constructions work
referred to in Annex 1 to this Law differ from the data referred
to in the NACE nomenclature which is specified in Commission
Regulation (EC) No 29/2002 of 19 December 2001 amending Council
Regulation (EEC) No 3037/90 on the statistical classification of
economic activities in the European Community, the relevant CVP
nomenclature shall be applied.
[20 April 2017]
Section 120. Procedures for the
Execution of the Decision on the Prohibition to Hold the Office
of a Public Official
[5 December 2019 / See Paragraph 33 of Transitional
Provisions]
Section 121. Statistical Surveys
The public partner or the representative of the public partner
shall, each year by 1 April, submit statistical surveys to the
Procurement Monitoring Bureau in accordance with the procedures
stipulated by the Cabinet. The Cabinet shall determine the
content of the statistical surveys.
[20 April 2017 / See Paragraph 31 of Transitional
Provisions]
Section 122. Electronic Invoices
The public partner or its representative shall accept the
electronic invoice conforming to the laws and regulations
regarding the applicable standard for an electronic invoice and
the specifications for the use of its key elements and the
procedures for its handling, and, if it is provided for in the
public-private partnership contract, shall include additional
elements according to the abovementioned laws and regulations.
The Cabinet shall determine the applicable standard for an
electronic invoice and the specifications for the use of its key
elements and the procedures for its handling.
[21 February 2019 / See Paragraph 32 of Transitional
Provisions]
Chapter XXVI
Administrative Offences in the Field of Granting Concessions and
Competence within the Administrative Offence Proceedings
[5 December 2019 / The Chapter
shall come into force on 1 July 2020. See Paragraph 33 of
Transitional Provisions]
Section 123. Unlawful Conclusion of
a Concession Contract
(1) For conclusion of a concession contract or for performance
of any other transaction which corresponds to the nature of a
concession contract, unless the concession procedure laid down in
this Law or other procedures for the contract awarding laid down
in this Law which had to be applied are applied, a fine from
fourteen to two hundred and forty units of fine shall be
imposed.
(2) For conclusion of a concession contract if inappropriately
selected concession procedure or other procedures for the
contract awarding laid down in this Law have been applied, a fine
from fourteen to two hundred and forty units of fine shall be
imposed.
(3) For conclusion of a concession contract if the notice
specified in this Law has not been published on the website of
the Procurement Monitoring Bureau and in the Official Journal of
the European Union, provided that it should have been published
on both websites upon commencement of the concession procedure, a
fine from fourteen to two hundred and forty units of fine shall
be imposed.
(4) For the activities referred to in Paragraph one, two, or
three of this Section if the contract price of the concluded
concession contract or of other transaction performed is EUR 145
000 or more, a fine from seventy to four hundred units of fine
and a prohibition to exercise rights - a prohibition to hold
offices, for the time period from one to two years, the duties of
which include taking of decisions in the field of public
procurements and public-private partnership or the conclusion of
procurement contracts, framework agreements, partnership
procurement contracts, or concession contracts - shall be
imposed.
[5 December 2019 / Numbering of the Section is
amended by the Law of 30 April 2020 / Section shall come into
force on 1 July 2020. See Paragraphs 33 and 34 of Transitional
Provisions]
Section 124. Failure to Comply with
the Provisions for the Prevention of a Conflict of Interests
(1) For the failure to ensure the signing of the certification
specified in this Law on non-existence of such conditions because
of which it could be regarded that the person preparing the
concession procedure documents, members of the concession
procedure commission, the secretary of the concession procedure
commission, or experts of the concession procedure commission are
interested in the selection or activity of the particular
tenderer, or are related to the particular candidate or tenderer,
a warning or a fine from fourteen to seventy units of fine shall
be imposed.
(2) For the failure to comply with the prohibition specified
in this Law in respect of the officials and employees of the
public partner or representative of the public partner who are
preparing the concession procedure documents, members of the
concession procedure commission, the secretary of the concession
procedure commission, and experts of the concession procedure
commission to represent the interests of a tenderer, and also the
prohibition to be related with a tenderer, a fine from fourteen
to one hundred and forty units of fine shall be imposed.
[5 December 2019; 30 April 2022; 5 May 2022]
Section 125. Failure to Comply with
the Provisions for the Exclusion of Tenderers, Requirements for
Their Selection and Requirements of Technical Specifications
(1) For the failure to comply with the provisions for the
exclusion of tenderers laid down in this Law if the tenderer has
been unjustifiably excluded or has not been unjustifiably
excluded from the participation in the concession procedure or
another contract awarding procedure and it has affected the
decision on the results of tenderer selection or the decision on
awarding the contract, a fine from fourteen to seventy units of
fine shall be imposed.
(2) For the failure to comply with the requirements for the
selection of tenderers or the requirements of technical
specifications laid down in the concession procedure documents if
the application or tender of the tenderer has been unjustifiably
rejected or unjustifiably recognised as non-complying with the
requirements laid down in the concession procedure documents and
it has affected the decision on the results of tenderer selection
or the decision on awarding the contract, a fine from fourteen to
seventy units of fine shall be imposed.
[5 December 2019 / Numbering of the Section is
amended by the Law of 30 April 2020 / Section shall come into
force on 1 July 2020. See Paragraphs 33 and 34 of Transitional
Provisions]
Section 126. Failure to Comply with
the Provisions for the Conclusion and Amendment of a Concession
Contract.
(1) For conclusion of a concession contract if the waiting
period specified in this Law has not been complied with, however
it should have been complied with, a fine from fourteen to two
hundred and forty units of fine shall be imposed.
(2) For conclusion of a concession contract if the prohibition
specified in this Law to conclude a procurement contract after
the Procurement Monitoring Bureau has received a submission on
violation of the concession procedure has not been complied with
or if the prohibition specified by the submission examination
commission of the Procurement Monitoring Bureau to conclude the
relevant concession contract has not been complied with, a fine
from fourteen to two hundred and forty units of fine shall be
imposed.
(3) For conclusion of a concession contract if the provisions
provided for in the concession procedure documents are not
included or different provisions are included therein, and if
such possibility has not been provided for in the concession
procedure documents in accordance with the requirements or this
Law or other provisions for amending a concession contract
provided for in this Law have not been complied with, a fine from
fourteen to two hundred and forty units of fine shall be
imposed.
(4) For making amendments to a concession contract if the
provisions for amending a concession contract provided for in
this Law have not been complied with, a fine from fourteen to two
hundred and forty units of fine shall be imposed.
(5) For the activities referred to in Paragraph one, two,
three, or four of this Section if the contract price of the
concluded concession contract or amendments is EUR 145 000 or
more, a fine from seventy to four hundred units of fine and a
prohibition to exercise rights - a prohibition to hold such
offices, for the time period from one to two years, the duties of
which include taking of decisions in the field of public
procurements and public-private partnership or the conclusion of
procurement contracts, framework agreements, partnership
procurement contracts, or concession contracts - shall be
imposed.
[5 December 2019 / Numbering of the Section is
amended by the Law of 30 April 2020 / Section shall come into
force on 1 July 2020. See Paragraphs 33 and 34 of Transitional
Provisions]
Section 127. Provision of the
Concession Procedure Documents and Information
(1) For the failure to comply with the provisions provided for
in this Law during preparation of applications or tenders in
respect of ensuring the accessibility of concession procedure
documents, the issue of concession procedure documents, or the
provision of additional information, a warning or a fine from
fourteen to seventy units of fine shall be imposed.
(2) For the failure to comply with the procedures by which
tenderers are to be informed of the results of the concession
procedure or another contract awarding procedure, a warning or a
fine from fourteen to seventy units of fine shall be imposed.
(3) For the failure to comply with the requirements in respect
of issue of the minutes of the concession procedure commission or
the requirements for the preparation, publishing, or issue of the
final report, a warning or a fine from fourteen to seventy units
of fine shall be imposed.
(4) For the failure to submit a statistical report within the
time period specified in this Law or for the submission of
incomplete report, a warning or a fine from fourteen to seventy
units of fine shall be imposed.
[5 December 2019 / Numbering of the Section is
amended by the Law of 30 April 2020 / Section shall come into
force on 1 July 2020. See Paragraphs 33 and 34 of Transitional
Provisions]
Section 128. Competence within the
Administrative Offence Proceedings
Administrative offence proceedings for the offences referred
to in Sections 123, 124, 125, 126, and 127 of this Law shall be
conducted by the Procurement Monitoring Bureau.
[5 December 2019; 30 April 2020 / Section shall come
into force on 1 July 2020. See Paragraphs 33 and 34 of
Transitional Provisions]
Section 129. Procedures for the
Execution of the Decision on the Prohibition to Hold Offices
(1) Within one working day after the decision in an
administrative offence case has been communicated to the person
on whom a prohibition to exercise the rights - a prohibition to
hold offices the duties of which include taking of the decisions
in the field of public procurements and public-private
partnership or the conclusion of procurement contracts, framework
agreements, partnership procurement contracts, or concession
contracts has been imposed, the Procurement Monitoring Bureau
shall inform all the authorities known to the Procurement
Monitoring Bureau in which the relevant person holds the relevant
offices, and also the higher authorities of such authorities
(except for the case when there is no higher authority or the
Cabinet is the higher authority) or owners or holders of capital
shares, if the relevant authority is a capital company, of the
decision taken.
(2) Within three working days after receipt of the information
on the fact that the decision has entered into effect in the
administrative offence case in which a prohibition to exercise
the rights - the prohibition to hold such offices the duties of
which include taking the decisions in the field of public
procurements and public-private partnership or conclusion of
procurement contracts, framework agreements, partnership
procurement contracts, or concession contracts - has been
imposed, the Procurement Monitoring Bureau shall send the
relevant information to the authorities referred to in Paragraph
one of this Section, and also publish the given name, surname,
personal identity number (if none, the date of birth and country)
of the person held administratively liable and the time period
for the execution of the penalty in the publication management
system. The abovementioned information shall be available in the
publication management system for the users registered therein
for the performance of the duties specified in the law until the
day when the enforcement of the penalty ends.
(3) The authority in which the person on whom a prohibition to
exercise the rights - a prohibition to hold offices the duties of
which include taking of the decisions in the field of public
procurement and public-private partnership or the conclusion of
procurement contracts, framework agreements, partnership
procurement contracts, or concession contracts has been imposed,
holds such offices, has an obligation to ensure that after
entering into effect of the decision in the administrative
offence case the relevant person does not hold such offices, does
not take the decisions, and does not conclude the contracts.
[5 December 2019; 30 April 2020; 5 May 2022]
Transitional Provisions
1. With the coming into force of this Law, the Concessions Law
(Latvijas Republikas Saeimas un Ministru Kabineta
Ziņotājs, 2000, No. 4; 2003, No. 2) is repealed.
2. The provisions of the Public Procurement Law shall be
applied in the public-private partnership procedures that, in
accordance with the provisions of the Public Procurement Law,
have been initiated prior to coming into force of this Law.
3. If, in accordance with the procedures laid down in the
Concessions Law, the Cabinet or the council of the relevant local
government has taken the decision on the transfer of concession
resources for concession and has approved the conditions for
granting concession, the provisions of the Concessions Law shall
be applied to further activities.
4. The Cabinet shall take the decision referred to in Section
16, Paragraph six of this Law if in case of institutional
partnership it is foreseen that the joint stock companies
referred to in Section 17, Paragraph one of the Law on the
Completion of the Privatisation of the State and Local Government
Property and the Use of Privatisation Certificates will no longer
own 100 per cent of the capital shares in the capital companies
referred to in Section 17, Paragraph two of the same Law or will
no longer have the decisive influence over the capital companies
referred to in Paragraph three (within the meaning of the Group
of Companies Law).
5. The Cabinet shall, by 1 October 2009, determine the
monitoring authority in accordance with Section 8, Paragraph four
of this Law.
6. In accordance with Section 11 of this Law, the Cabinet
shall, by 1 October 2009, approve the regulatory enactment
governing the activity of the monitoring authority and the
procedures for financing the activity of the monitoring
authority.
7. The Cabinet shall, by 1 September 2009, submit amendments
to other laws that are required as regards the adoption of this
Law to the Saeima.
8. The Cabinet shall, by 1 October 2009, issue the regulations
referred to in Section 9, Paragraph four, Section 12, Paragraph
three, Section 14, Paragraph two, Section 15, Paragraph three,
Section 20, Paragraph one, and Section 69, Paragraph two of this
Law.
9. The effective entries of the Concession Contract Register
shall be included in the new Contract Register without changing
the scope of the information and not requesting
re-registration.
10. The Enterprise Register shall make an entry on the
termination of the concession in the Concession Contract Register
if the validity period of the contract for the concession has
expired on the day of coming into force of this Law.
11. The provisions for the exclusion of a tenderer referred to
in Section 37, Paragraph one, Clauses 2 and 3 of this Law that
came into force on 7 September 2010 shall be applied to a
tenderer or the person on whose capacities the tenderer relies
upon to certify that the qualification thereof conforms to the
requirements specified in the invitation to participate in the
concession procedure or the concession procedure documents, if
the relevant violation has been committed or continues after 6
September 2010.
[25 August 2010]
12. The condition of Section 37, Paragraph one, Clause 5 of
this Law that came into force on 7 September 2010 shall be
applied also to the concession procedures which were announced
until 6 September 2010 unless the tenderer has been excluded from
participation in the concession procedure until 6 September
2010.
[25 August 2010]
13. Amendment to Section 20, Paragraph one, Section
53.1, and Section 29, Paragraph two, Clause 3 of this
Law governing a voluntary notice on the results of the concession
procedure, and also Section 31.2, Paragraph two shall
come into force on 1 October 2010.
[25 August 2010]
14. The Cabinet shall, by 1 October 2010, issue the new
regulations referred to in Section 20, Paragraph one.
[25 August 2010]
15. The new wording of Section 31 of this Law that came into
force on 7 September 2010 shall not be applied if the complaint
on the appeal of the decision taken by the complaint examination
commission of the Procurement Monitoring Bureau has been
submitted to the court until 6 September 2010.
[25 August 2010]
16. The application referred to in Section 31.1,
Paragraph one of this Law may be submitted if the right to
conclude a concession contract has arisen after 6 September
2010.
[25 August 2010]
17. The examination of cases regarding the recovery of losses
under the court proceedings, the examination of which has been
commenced, but has not been finished by 6 September 2010, shall
be completed in accordance with those laws and regulations which
were in force prior to 6 September 2010.
[25 August 2010]
18. [20 April 2017]
19. Amendments to Section 37, Paragraph one, Clause 5 and
Paragraph four, Clause 2 of this Law by which the number and word
"LVL 100" is replaced with the number and word "EUR 150" shall
come into force on 1 January 2014.
[19 September 2013]
20. If the financial and economic calculations are submitted
until 31 December 2013, the competent authorities shall indicate
in the opinions referred to in Section 15, Paragraph one of this
Law information from the financial and economic calculation,
which include sums in lats in sums in euros making the
recalculation in accordance with the principles of rounding laid
down in Section 6 of the Law on the Procedure for Introduction of
Euro.
[19 September 2013]
21. The concession procedures referred to in Section 17,
Paragraph one of this Law that have been announced until 31
December 2013 shall be completed, including contested or
appealed, in accordance with the provisions of this Law which
were in force on the day when the relevant concession procedure
was announced by complying with the conditions referred to in
Paragraphs 22, 23, and 24 of these Transitional Provisions.
[19 September 2013]
22. Amendment to Section 37, Paragraph one, Clause 5 of this
Law, which comes into force on 1 January 2014 and replaces the
number and word "100 lats" with the number and word "EUR 150",
shall be applied to an applicant and other persons referred to in
Section 37, Paragraph one, Clause 8 of this Law, if the existence
of tax debts is verified for a day after 31 December 2013,
regardless of the provisions included in the notice on the
invitation to participate in a concession procedure or in the
documents of the concession procedure.
[19 September 2013]
23. If in the tender on the basis of which a contract is
concluded after 31 December 2013 sums of money are indicated in
lats, the public partner shall express the relevant information
to be included in the contract in euros in accordance with the
principles of rounding laid down in Section 6 of the Law on the
Procedure for Introduction of Euro.
[19 September 2013]
24. In publishing a notice after 31 December 2013, the public
partner shall recalculate the sum indicated in lats in euros in
accordance with the principles of rounding laid down in Section 6
of the Law on the Procedure for Introduction of Euro and shall
indicate the relevant information in the notice in euros.
[19 September 2013]
25. A public-private partner is entitled to amend a
public-private partnership contract in order to convert the sums
laid down therein to euros in accordance with Section 4,
Paragraph two of the Law on the Procedure for Introduction of
Euro.
[19 September 2013]
26. The concession procedures commenced before 1 May 2017
shall be completed, including contested or appealed, in
accordance with the provisions of the Law which were in force on
the day when the relevant concession procedure was announced,
except for the provisions included in Section 38, Paragraph three
and Section 53, Paragraphs one and two of this Law.
[20 April 2017]
27. The Cabinet shall, by 10 May 2017, issue the regulations
referred to in Section 13.1, Section 19, Paragraph
three, Section 29.2, Paragraph seven, Section 37,
Paragraphs eight and thirteen, and Section 121 of this Law.
[20 April 2017]
28. The Cabinet shall, by 10 May 2017, issue the regulations
corresponding to Section 20, Paragraph one (the new wording) of
this Law.
[20 April 2017]
29. [30 April 2020]
30. Section 19, Paragraph one of this Law shall be
applied:
1) to the concession procedures implemented by central
purchasing bodies the estimated contract price of which is equal
to or exceeds the threshold of contract price stipulated by the
Cabinet - from 1 May 2017;
2) to the concession procedures the estimated contract price
of which is equal to or exceeds the threshold of contract price
stipulated by the Cabinet - from 1 October 2017;
3) to the concession procedures the estimated contract price
of which is less than the threshold of contract price stipulated
by the Cabinet - from 1 April 2018.
[20 April 2017]
31. The statistical surveys regarding concession contracts
specified in Section 121 of this Law shall be submitted starting
from 2018, and 2017 shall be the first reporting year.
[20 April 2017]
32. Institutions of direct administration shall apply Section
62, Clause 27.1 and Section 122 of this Law to payment
of such public-private partnership contracts for which the
public-private partnership was commenced on 18 April 2019, the
other contracting authorities - from 18 April 2020.
[21 February 2019]
33. Amendments to Section 1, Clause 37 of this Law (regarding
the prohibition to exercise rights), to Section 24 regarding the
new wording of Paragraph one thereof, and also regarding the
deletion of Section 120, and Chapter XXVI of this Law shall come
into force concurrently with the Law on Administrative
Liability.
[5 December 2019]
34. Amendments to Chapter XXVI of this Law regarding change of
the numbering of Sections and clarification of references shall
come into force concurrently with the Law on Administrative
Liability.
[30 April 2020]
35. If a concession procedure has been announced or the
decision on the initiation of the concession procedure when the
concession procedure is not to be announced has been taken until
31 December 2022, the concession procedure shall be completed,
including contested or appealed, in accordance with the
provisions of this Law which were in force on the date of
announcement of the concession procedure or the decision on the
initiation of the concession procedure.
[5 May 2022]
36. The public partner or the representative of the public
partner shall make an entry in the Contract Register for a
concession contract concluded starting from 1 January 2023 and
also for the existing public-private partnership contracts.
[5 May 2022]
37. The Enterprise Register shall, by 1 December 2022,
transfer to the Procurement Monitoring Bureau the entries in the
Contract Register together with the registration files and
documents submitted to the Enterprise Register in accordance with
the procedures laid down by this Law for such public-private
partnership contracts which have been entered in the Contract
Register until 30 October 2022 and for which no entry on
termination has been made in the Contract Register until 30
October 2022. The Procurement Monitoring Bureau shall include the
abovementioned information in the Contract Register by 31
December 2022.
[5 May 2022]
38. For the public-private partnership contracts in effect,
concluded in accordance with the provisions of the Law on
Concessions, the Procurement Monitoring Bureau shall include the
information at its disposal in the entry of the Contract
Register, and the public partner or the representative of the
public partner shall, not later than within five working days
after performance of the contracts referred to in this Paragraph,
supplement the entry in the Contract Register with the
information referred to in Section 62.1, Paragraph
two, Clauses 1, 2, 3, and 5 of this Law.
[5 May 2022]
Informative Reference to
Directives of the European Union
[20 April 2017; 21 February
2019]
This Law contains norms arising from:
1) Council Directive 89/665/EEC of 21 December 1989 on the
coordination of the laws, regulations and administrative
provisions relating to the application of review procedures to
the award of public supply and public works contracts;
2) Directive 2007/66/EC of the European Parliament and of the
Council of 11 December 2007 amending Council Directives
89/665/EEC and 92/13/EEC with regard to improving the
effectiveness of review procedures concerning the award of public
contracts;
3) Directive 2009/52/EC of the European Parliament and of the
Council of 18 June 2009 providing for minimum standards on
sanctions and measures against employers of illegally staying
third-country nationals;
4) Directive 2014/23/EU of the European Parliament and of the
Council of 26 February 2014 on the award of concession
contracts;
5) Directive 2014/55/EU of the European Parliament and of the
Council of 16 April 2014 on electronic invoicing in public
procurement.
This Law shall come into force on 1 October 2009.
This Law has been adopted by the Saeima on 18 June
2009.
President V. Zatlers
Rīga, 9 July 2009.
Law on Public-Private
Partnership
Annex 1
[20 April 2017]
|
Nomenclature of Construction Work |
| Classification of Economic Activities in the
European Union (NACE) |
CPV
code |
| SECTION F |
CONSTRUCTION |
|
| Division |
Group |
Class |
Subject |
Notes |
|
| 45 |
|
|
Construction |
This division includes:
construction of new buildings and construction work,
restoration and common repairs
|
45000000 |
| |
45.1 |
|
Site preparation |
|
45100000 |
| |
|
45.11 |
Demolition and wrecking of
buildings; earth moving |
This class includes:
1) demolition of buildings and other structures;
2) clearing of building sites;
3) earth moving: excavation, landfill, levelling and
grading of construction sites, trench digging, rock
removal, blasting, etc.;
4) site preparation for mining: overburden removal and
other development and preparation of mineral properties and
sites.
This class also includes:
1) building site drainage;
2) drainage of agricultural or forestry land.
|
45110000 |
| |
|
45.12 |
Test drilling and boring |
This class includes: test drilling, test boring and core
sampling for construction, geophysical, geological or
similar purposes.
This class excludes:
1) drilling of production oil or gas wells,
see 11.20;
2) water well drilling,
see 45.25;
3) shaft sinking,
see 45.25;
4) oil and gas field exploration, geophysical,
geological and seismic surveying,
see 74.20.
|
45120000 |
| |
45.2 |
|
Building of complete
constructions or parts thereof; civil engineering |
|
45200000 |
| |
|
45.21 |
General construction of
buildings and civil engineering works |
This class includes:
1) construction of all types of buildings construction
and civil engineering constructions;
2) bridges, including those for elevated highways,
viaducts, tunnels and subways;
3) long-distance pipelines, communication and power
lines;
4) urban pipelines, urban communication and power
lines;
5) ancillary urban work;
6) assembly and erection of prefabricated constructions
on the site.
This class excludes:
1) service activities incidental to oil and gas
extraction,
see 11.20;
2) erection of complete prefabricated constructions from
self-manufactured parts not of concrete,
see divisions 20, 26 and 28;
3) construction work, other than buildings, for
stadiums, swimming pools, gymnasiums, tennis courts, golf
courses and other sports installations,
see 45.23;
4) building installation,
see 45.3;
5) building completion,
see 45.4;
6) architectural and engineering activities,
see 74.20;
7) project management for construction,
see 74.20.
|
45210000
Excluding:
45213316
45220000
45231000
45232000
|
| |
|
45.22 |
Erection of roof covering and
frames |
This class includes:
1) erection of roofs;
2) roof covering;
3) waterproofing.
|
45261000 |
| |
|
45.23 |
Construction of highways, roads,
airfields and sport facilities |
This class includes:
1) construction of highways, streets, roads and other
vehicular and pedestrian ways;
2) construction of railways;
3) construction of airfield runways;
4) construction work, other than buildings, for
stadiums, swimming pools, gymnasiums, tennis courts, golf
courses and other sports installations;
5) painting of markings on road surfaces and car
parks.
This class excludes preliminary earth moving,
see 45.11
|
45212212 and DA03
45230000
Excluding:
45231000
45232000
45234115
|
| |
|
45.24 |
Construction of water
projects |
This class includes:
1) construction of waterways, harbour and river works,
pleasure ports (marinas), locks, etc.;
2) dams and dykes;
3) dredging;
4) subsurface work.
|
45240000 |
| |
|
45.25 |
Other construction work
involving special trades |
This class includes:
1) construction activities specialising in one aspect
common to different kinds of structures, requiring
specialised skill or equipment;
2) construction of foundations, including pile
driving;
3) water well drilling and construction, shaft
sinking;
4) assembly of non-self-manufactured steel elements;
5) steel bending;
6) bricklaying and stone setting;
7) scaffolds and work platform erecting and dismantling,
including renting of scaffolds and work platforms;
8) erection of chimneys and industrial ovens.
This class excludes renting of scaffolds without
erection and dismantling,
see 71.32
|
45250000
45262000
|
| |
45.3 |
|
Building installation |
|
45300000 |
| |
|
45.31 |
Installation of electrical
wiring and fittings |
This class includes installation in buildings or other
construction projects of:
1) electrical wiring and fittings;
2) telecommunications systems;
3) electrical heating systems;
4) residential antennae;
5) fire alarms;
6) burglar alarm systems;
7) lifts and escalators;
8) lightning conductors, etc.
|
45213316
45310000
Excluding:
45316000
|
| |
|
45.32 |
Insulation work activities |
This class includes installation in buildings or other
construction projects of thermal, sound or vibration
insulation.
This class excludes waterproofing,
see 45.22
|
45320000 |
| |
|
45.33 |
Plumbing |
This class includes installation in buildings or other
construction projects of:
1) plumbing and sanitary equipment;
2) gas fittings;
3) heating, ventilation, refrigeration or
air-conditioning equipment and ducts;
4) sprinkler systems.
This class excludes installation of electrical heating
systems,
see 45.31
|
45330000 |
| |
|
45.34 |
Other building installation |
This class includes:
1) installation of illumination and signalling systems
for roads, railways, airports and harbours;
2) installation in buildings or other construction
projects of fittings and fixtures not elsewhere
classified
|
45234115
45316000
45340000
|
| |
45.4 |
|
Building completion |
|
45400000 |
| |
|
45.41 |
Plastering |
This class includes application
in buildings or other construction projects of interior and
exterior plaster or stucco, including related lathing
materials. |
45410000 |
| |
|
45.42 |
Joinery installation |
This class includes:
1) installation of not self-manufactured doors, windows,
door and window frames, fitted kitchens, staircases, shop
fittings and the like, of wood or other materials;
2) interior completion (ceilings, wooden wall coverings,
movable partitions, etc.).
This class excludes laying of parquet and other wood
floor coverings,
see 45.43
|
45420000 |
| |
|
45.43 |
Floor and wall coverings |
This class includes laying, tiling, hanging or fitting in
buildings or other construction projects of:
1) ceramic, concrete or cut stone floor or wall
tiles;
2) parquet and other wood floor coverings carpets and
linoleum floor coverings (including of rubber or
plastic);
3) terrazzo, marble, granite or slate floor or wall
coverings;
4) wallpaper.
|
45430000 |
| |
|
45.44 |
Painting and glazing |
This class includes:
1) interior and exterior painting of buildings;
2) painting of civil engineering structures;
3) installation (glass, mirrors, etc.).
This class excludes installation of windows,
see 45.42
|
45440000 |
| |
|
45.45 |
Other building completion |
This class includes:
1) installation of private swimming pools;
2) steam cleaning, sand blasting and similar activities
for building exteriors;
3) other building completion and finishing work not
elsewhere classified.
This class excludes interior cleaning of buildings and
other structures,
see 74.70
|
45212212 and DA04
45450000
|
| |
45.5 |
|
Renting of construction or
demolition equipment with operator |
|
45500000 |
| |
|
45.50 |
Renting of construction or
demolition equipment with operator |
This class excludes renting of construction or demolition
machinery and equipment without operators,
see 71.32
|
45500000 |
Law on Public-Private
Partnership
Annex 2
[20 April 2017]
| Social
and Other Special Services Referred to in Section 17,
Paragraph Seven of this Law |
| No. |
Description |
CPV code |
| 1. |
Health, social and related
services |
75200000-8, 75231200-6,
75231240-8, 79611000-0, 79622000-0 (supply services of
domestic help personnel), 79624000-4 (supply services of
nursing personnel), 79625000-1 (supply services of medical
personnel), from 85000000-9 to 85323000-9, 85143000-3,
98133100-5, 98133000-4, 98200000-5, 98500000-8 (private
households with employed persons), from 98513000-2 to
98514000-9 (manpower services for households, agency staff
services for households, clerical staff services for
households, temporary staff for households, home-help
services and domestic services) |
| 2. |
Administrative, social,
educational, health care and cultural services |
85321000-5, 85322000-2,
75000000-6 (administration, defence and social security
services), 75121000-0, 75122000-7, 75124000-1, from
79995000-5 to 79995200-7, from 80000000-4 (education and
training services) to 80660000-8, from 92000000-1 to
92342200-2, from 92360000-2 to 92700000-8, 79950000-8
(exhibition, fair and congress organisation services),
79951000-5 (seminar organisation services), 79952000-2 (event
organisation services), 79952100-3 (cultural event
organisation services), 79953000-9 (festival organisation
services), 79954000-6 (party organisation services),
79955000-3 (fashion shows organisation services), 79956000-0
(fair and exhibition organisation services) |
| 3. |
Compulsory social security
services |
75300000-9 |
| 4. |
Benefit services |
75310000-2, 75311000-9,
75312000-6, 75313000-3, 75313100-4, 75314000-0, 75320000-5,
75330000-8, 75340000-1 |
| 5. |
Other community, social and
personal services including services furnished by trade
unions, political organisations, youth associations and other
membership organisation services |
98000000-3, 98120000-0,
98132000-7, 98133110-8 and 98130000-3 |
| 6. |
Religious services |
98131000-0 |
| 7. |
Hotel and restaurant
services |
From 55100000-1 to 55410000-7,
from 55521000-8 to 55521200-0 (55521000-8 catering services
for private households, 55521100-9 meals-on-wheels services,
55521200-0 meal delivery service), 55520000-1 (catering
services), 55522000-5 (catering services for transport
enterprises), 55523000-2 (catering services for other
enterprises or other institutions), 55524000-9 (school
catering services), 55510000-8 (canteen services), 55511000-5
(canteen and other restricted-clientele cafeteria services),
55512000-2 (canteen management services), 55523100-3
(school-meal services) |
| 8. |
Legal services |
From 79100000-5 to 79140000-7,
75231100-5 |
| 9. |
Other administrative services
and government services |
From 75100000-7 to 75120000-3,
75123000-4, from 75125000-8 to 75131000-3 |
| 10. |
Provision of services to the
community |
From 75200000-8 to
75231000-4 |
| 11. |
Prison related services, public
security and rescue services, provided that they are not
excluded in accordance with Section 3, Paragraph one, Clause
9 of this Law. |
From 75231210-9 to 75231230-5,
from 75240000-0 to 75252000-7, 794300000-7, 98113100-9 |
| 12. |
Investigation and security
services |
From 79700000-1 to 79721000-4
(investigation and security services, security services,
alarm-monitoring services, guard services, surveillance
services, tracing system services, absconder-tracing
services, patrol services, identification badge release
services, investigation services and detective agency
services) 79722000-1 (graphology services), 79723000-8 (waste
analysis services) |
| 13. |
International services |
98900000-2 (services provided by
extra-territorial organisations and bodies) and 98910000-5
(services specific to international organisations and
bodies) |
| 14. |
Postal services |
64000000-6 (postal and
telecommunications services), 64100000-7 (post and courier
services), 64110000-0 (postal services), 64111000-7 (postal
services related to newspapers and periodicals), 64112000-4
(postal services related to letters), 64113000-1 (postal
services related to parcels), 64114000-8 (post office counter
services), 64115000-5 (mailbox rental), 64116000-2
(post-restante services), 64122000-7 (internal office mail
and messenger services) |
| 15. |
Miscellaneous services |
50116510-9 (tyre-remoulding
services), 71550000-8 (blacksmith services) |
Law on Public-Private
Partnership
Annex 3
[5 May 2022]
International Conventions in
Social and Environmental Fields
1. Forced Labour Convention, 1930 (ILO Convention No. 29).
2. Freedom of Association and Protection of the Right to
Organise Convention, 1948 (ILO Convention No. 87).
3. Right to Organise and Collective Bargaining Convention,
1949 (ILO Convention No. 98).
4. Equal Remuneration Convention, 1951 (ILO Convention No.
100).
5. Abolition of Forced Labour Convention, 1957 (ILO Convention
No. 105).
6. Discrimination (Employment and Occupation) Convention, 1958
(ILO Convention No. 111).
7. Minimum Age Convention, 1973 (ILO Convention No. 138).
8. Vienna Convention for the Protection of the Ozone Layer,
1985, and its Montreal Protocol on Substances that Deplete the
Ozone Layer, 1987.
9. Basel Convention on the Control of Transboundary Movements
of Hazardous Wastes and their Disposal, 22 March 1989 (Basel
Convention).
10. Rotterdam Convention on the Prior Informed Consent
Procedure for Certain Hazardous Chemicals and Pesticides in
International Trade (UNEP/FAO) (PIC Convention), 10 September
1989, and its three regional protocols.
11. Worst Forms of Child Labour Convention, 1999 (ILO
Convention No. 182).
12. Stockholm Convention of 22 May 2001 on Persistent Organic
Pollutants (Stockholm Convention).
1 The Parliament of the Republic of
Latvia
Translation © 2024 Valsts valodas centrs (State
Language Centre)
