1

Translation from Finnish

Legally binding only in Finnish and Swedish

Ministry of Defence Finland ACT ON PUBLIC PROCUREMENT IN THE FIELDS OF DEFENCE AND SECURITY

PART I

General provisions on the principles and scope of application

Chapter 1

Purpose and principles

Section 1

Purpose of the Act

This Act lays down provisions for state and municipal authorities and other contracting entities

on putting their contracts in the fields of defence and security out to tender and on the princi-ples and procedures to be applied in the procurement process

Without endangering essential security interests of the state the purpose of this Act is to in-

crease the efficient use of public funds promote high-quality procurement and safeguard equal

opportunities for companies and other entities in offering supply service and public works con-tracts under competitive bidding for public procurement in the fields of defence and security

This Act governs the entry into force of Directive 200981EC of the European Parliament and

of the Council on the coordination of procedures for the award of certain works contracts sup-

ply contracts and service contracts by contracting authorities or entities hereinafter referred to

as the Directive on public procurement in the fields of defence and security amending Direc-tives 200417EC and 200418EC

Section 2

Principles to be complied with in public procurement in the fields of defence and se-curity

The contracting authorityentity shall make use of the existing competitive conditions ensure

equality and non-discriminatory treatment of the participants in the procurement procedure

and act in a transparent way while meeting the requirements of proportionality unless other-

wise provided in Article 346(1)(b) of the Treaty on the Functioning of the European Union about the

key security intestes of a state

Contracting entities shall endeavour to organise their procurement activity so that procure-

ment can be accomplished as economically and systematically as possible in combinations as

appropriate as possible taking environmental considerations into account In order to reduce

procurement-related administrative work contracting entities may employ framework agree-

ments and joint procurement or make use of other partnership opportunities available in com-

petitive bidding for public procurement in the fields of defence and security

If the candidate or tenderer is an entity or institution owned by the contracting authorityentity

or another contracting authorityentity it shall be treated equally alongside other candidates and tenderers

2

Section 3

Definitions

For the purposes of this Act and the regulations based thereon the following terms shall have

the following meanings

1) Public contracts are contracts for pecuniary interest concluded in writing between one or

more contracting entities and one or more suppliers and having as their object the execution of works the supply of products or the provision of services

2) Public works contracts are public contracts having as their object either the execution or

both the design and execution of works related to one of the activities referred to in Annex C

or the realisation by whatever means of a work corresponding to the requirements specified

by the contracting authorityentity a work may be an economic or technical entity that con-sists of building civil or hydraulic engineering works

3) Public supply contracts are public contracts other than public works contracts having as

their object the purchase lease rental or hire purchase with or without the option to buy of

products a public contract which also includes assembly and installation operations as its ob-ject shall also be considered a public supply contract

4) Public service contracts are contracts other than public works or public supply contracts

having as their object the provision of services a public contract having as its object both

products and services shall also be considered a public service contract if the value of the ser-

vices is greater than that of the products a public contract that in addition to services includes

works activities referred to in Annex C and such works activities are only ancillary with respect to the primary object of the procurement shall also be considered a public service contract

5) Sub-contract agreements are contracts for pecuniary interest concluded in writing between

the tenderer selected as the contracting party and one or more suppliers and having as their

object the execution of works the supply of products or the provision of services

6) Supplier means any natural or legal person or public entity or group of such persons or enti-

ties which offers on the market products or services or the execution of a work or works

7) Candidate is a supplier that has declared its willingness to participate in a restricted or ne-gotiated procedure or a competitive dialogue procedure

8) Tenderer is a supplier who has submitted a tender

9) Restricted procedure means a procurement procedure in which the contracting authori-

tyentity publishes a contract notice concerning the procurement and any interested suppliers

may request to participate only those candidates selected by the contracting authorityentity may submit a tender

10) Negotiated procedure means a procurement procedure in which the contracting authori-

tyentity publishes a contract notice concerning the procurement and any interested suppliers

may request to participate the contracting authorityentity negotiates the terms of the con-

tract with the suppliers it has selected

11) Direct award of contract means a procurement procedure in which the contracting authori-

tyentity admits to the procedure one or more suppliers without publication of a contract no-tice and negotiates the terms of the contract with these

12) Competitive dialogue means a procurement procedure in which the contracting authori-

tyentity publishes a contract notice concerning the procurement and any supplier may request

to participate the contracting authorityentity conducts a dialogue with the candidates admit-

ted to that procedure with the aim of finding one or more solutions capable of meeting its re-quirements and on the basis of which selected candidates are invited to tender

13) Framework agreement is an agreement between one or more contracting entities and one

or more suppliers the purpose of which is to establish the terms such as prices and planned quantities of contracts to be awarded during a given period of time

14) Classified document means a document or the information it contains to which a certain

level of security classification has been attributed

3

15) Crisis means any situation in Finland or in another country in which a harmful event has

occurred which clearly exceeds the dimensions of harmful events in everyday life and which

substantially endangers or restricts the life and health of people or has a substantial impact

on property values or the measures to supply the population with necessities have been sub-

stantially endangered or restrictred a crisis shall also be deemed to have arisen if the occur-

rence of such a harmful event is deemed to be impending armed conflicts and wars are con-

sidered to constitute a crisis for the purposes of this Act

16) Research and development means all activities consisting of basic and applied research

and experimental development the latter may include the equipment used to introduce the

new concept or technology in an appropriate or typical setting

17) Technical specification means the definition of the characteristics required of a product

service or materials that are the object of the procurement these characteristics shall include inter alia requirements for v

levels of quality or environmental protection design conformity and applicability assessment

of the use of the product product safety and measurements the name under which the prod-

uct is sold terminology symbols testing and test methods package markings labelling user

instructions production processes and methods and conformity assessment in the case of

public works contracts technical specifications also include rules related to design cost ac-

counting testing and inspection acceptance conditions construction methods and techniques and other technical requirements related to finished works and materials or parts thereof

18) Standard means a technical specification which has been published as a standard ap-

proved by a recognised standardising body for repeated or continued application compliance with which is not compulsory and which falls in one of the following categories

a) International in which case the standard is adopted by an international standards organisa-tion and is available to the general public

a) European in which case the standard is adopted by a European standards organisation and is available to the general public or

a) National in which case the standard is adopted by a national standards organisation and is

available to the general public

d) Defence industry-related in which case the standard is approved by an international re-

gional or national standardising body specialised in drawing up technical specifications for re-

peated and continuous use in the defence industry and compliance with the standard is not compulsory

19) European technical approval means a favourable technical assessment issued by an ap-

proval body appointed by a European Union member state stating that the building works

product in question is suitable for a particular purpose approval is based on the fulfilment of

the essential requirements for building works based on which the inherent characteristics of the product are specified and the defined conditions in which the product is used

20) Official technical specification is a technical specification which has been approved by Eu-

ropean Union member states and published in the Official Journal of the European Union

21) Technical reference means any technical specification ndash other than the official standard ndash

drawn up by a European standardisation body according to procedures adopted for the devel-opment of market needs

22) Recognised body means test and calibration laboratories and inspection and certification

bodies which comply with applicable European standards the contracting authorityentity shall

also accept certificates from recognised bodies in other European Union member states

23) Life cycle means any and all subsequent stages the product goes through ie research

and development industrial development production repair modernisation modification

maintenance logistics and the organisation of logistics storage transport training testing

removal and destruction

24) Common procurement vocabulary (CPV)) means the reference nomenclature laid down by

Regulation (EC) No 21952002 of the European Parliament and of the Council on the common procurement vocabulary

4

25) The expression written or in writing means a combination of words or figures which can be

read reproduced and subsequently communicated it may include information which is trans-mitted and stored by electronic means

26) The expression electronic format means a form of communication which uses electrotech-

nical equipment for the processing and storage of data which is transmitted conveyed and

received by wire radio or optical or other electromagnetic means

Chapter 2

Scope of application

Section 4

Contracting entities

For the purposes of this Act contracting entities shall mean

1) State and municipal authorities and joint municipal authorities

2) State enterprises in accordance with the State Enterprise Act (11852002)

3) Bodies governed by public law meaning legal persons established for the specific purpose

of meeting needs in the general interest and not having an industrial or commercial character

and

a) financed for the most part by the contracting authorityentity referred to in point 1ndash3

b) whose management is subject to supervision by the contracting authorityentity referred to

in point 1ndash3 or

c) having an administrative managerial or supervisory board more than half of whose mem-bers are appointed by the contracting authorityentity referred to in point 1ndash3

4) contracting entities 1 in accordance with Section 5 of the Act on Public Procurement by Enti-

ties in the Water Energy Transport and Postal Services Sector (3492007) hereafter referred to as the Act on Public Contracts in Special Sectors

Section 5

Procurement in the fields of defence and security

Unless otherwise prescribed in articles 36 51 52 or 62 of the Treaty on the Functioning of the

European Union hereafter TFEU this Act shall apply to defence and security related procure-

ment by contracting entities referred to in Section 4

Procurement in the field of defence means

1) Defence equipment or parts or components thereof

2) Public works products or services directly related to a phase in the life cycle of products

referred to in point 1

3) Public works or services used specifically for military purposes

Procurement in the field of security means

1) Products which are meant to be used for security purposes and for the procurement of

which classified documents are submitted drawn up or otherwise dealth with and parts com-

ponents thereof

2) Public works products or services directly related to a phase in the life cycle of products

referred to in point 1

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3) Public works or services meant to be used for security purposes and for the procurement of

which classified documents are submitted drawn up or otherwise dealth with

Defence equipment refers to products which are specifically designed or adjusted for military

purposes and meant to be used as a weapon ammunition or defence materiel

Section 6

Public contracts applicable to several functions and the application of the Act on pub-

lic contracts

If the procurement of works products or services is included in part within the scope of appli-

cation of this Act and in part within the scope of the Act on Public Contracts (3482007)

hereafter referred to as the Public Procurement Act or within the scope of application of the

Act on public contracts in special sectors it shall be conducted in accordance with this Act

provided that objective reasons justify the execution of one single contract

If the procurement of works products or services is included only in part within the scope of

application of this Act while at the same time being excluded from the scope of application of

the Public Procurement Act or the Act on Public Contracts in Special Sectors and the procure-

ment can be carried out on the basis of one contract only the provisions of this Act shall not

apply with the exception of a procurement rectification laid down in Section 85 of this Act and

the prohibition to appeal laid down in Section 104(2)

The procurement shall not be carried out as one contract for the purpose of avoiding the appli-

cation of the provisions of this Act the Procurement Act or the Act on public contracts in spe-cial sectors

The contracting authorityentity may decide to apply the provisions of the Public Procurement

Act in the procurement of a product service or work instead of this Act The Public Procure-

ment Act will then be applied in its entirety while Section 77(3) shall be applied to the notifica-tion of the decision made by the contracting authorityentity

Section 7

General exclusions from the scope of application of this Act

With the exception of a procurement rectification laid down in Section 85 and a prohibition to

appeal laid down in Section 104(2) this act shall not apply to

1) Defence and security procurement when declared secret or when the application of this Act

would oblige the contracting authorityentity to disclose information the publishing of which is

against the essential security interests of the state

2) Defence and security procurement between authorities

3) Defence and security procurement to which the following points apply

a) special procedural provisions between Finland and at least one state outside

the European Economic Area on the basis of an international treaty or ar-

rangement

b) special procedural provisions based on an international treaty or arrange-

ment related to the placement of troops

c) special procedural provisions of an international organisation when such or-

ganisation conducts procurement for its own purposes or

d) special procedural provisions of an international organisation when the con-

tracting authorityentity is obliged to carry out the procurement in accord-

ance with such provisions

6

4) Defence and security procurement related to a joint new product research and development

project between at least two European Economic Area member states and not to procure-

ment which has been executed during the later stages in the life cycle of this product or

5) Procurement executed in connection with sending troops to areas outside the European

Economic Area and carried out when the procurement ndash for operational requirements ndash must

be conducted with a supplier operating in that area

This act shall also not apply to

1) Defence and security procurement carried out by the contracting authorityentity referred to

in Section 4(1)(4) and when the value of the contract does not exceed the EU threshold val-

ues in accordance with Section 12 and

2) defence and security procurement carried out to perform a function in terms of which it has

been confirmed by a decision of the European Commission ndash in accordance with Section 11 of

the Act on public contracts in special sectors ndash that the function is open to direct competition in markets that have no restrictions on entry

If all of the participants in the research and development project referred to in subsection 1

point 4 above are member states of the European Union the European Commission must be

informed of such a search and development project The notice must be issued when the re-

search and development project is started and must include information on the cost-sharing

agreement between the parties the share of research and development expenditure relative to

the total costs of the project and in the event that the planned procurement involves member states their shares

Section 8

Specific exclusions from the scope of application of this Act

With the exception of a procurement rectification laid down in Section 85 and a prohibition to

appeal laid down in Section 104(2) this Act shall not apply to defence and security procure-ment related to intelligence activities

Similarly with the exception of a procurement rectification laid down in Section 85 and a pro-

hibition to appeal laid down in Section 104(2) this Act shall also not apply to defence and se-curity procurement concerning

1) the acquisition or rental ndash by whatever form of financing ndash of land existing buildings or oth-er immovable property or services related to the rights concerning them

2) arbitration and conciliation services

3) financial services with the exception of insurance services

4) employment contracts

5) research and development services other than those where the benefits accrue exclusively

to the contracting authorityentity for use in the conduct of its own affairs on condition that the service provided is wholly remunerated by the contracting authorityentity

Section 9

Procurement from in-house companies

This Act shall not apply to defence and security procurement from a body formally separate

and ndash in terms of decision making ndash independent of the contracting authorityentity carrying

out the procurement provided that the contracting authorityentity ndash by itself or in coopera-

tion with other contracting entities ndash oversees the body in question in the same way it over-

sees its own places of operation and the body conducts the majority of its operations with

those contracting entities under whose control it operates

7

Section 10

Procurement from or through a central purchasing body

Contracting entities which purchase products services or works that fall within the scope of

application of this Act from or through a central purchasing body shall be deemed to have complied with this Act insofar as the central purchasing body has complied with it

A central purchasing body is a contracting authorityentity or a European public body which

acquires supplies or services for the contracting entities or executes ndash on their behalf ndash public contracts or framework agreements on supplies services or works

Section 11

Reserving procurement for sheltered workshops

A contracting authorityentity may limit participation in competitive bidding to sheltered work-

shops or similar bodies or provide for such contracts to be carried out in the context of shel-

tered employment programmes where most of the employees concerned are people with disa-

bilities who by reason of the nature or seriousness of their disabilities cannot carry on occu-

pational activity under normal conditions The public contract notice must indicate that the

contract is reserved for sheltered workshops or shall be carried out in the context of sheltered

employment programmes

Chapter 3

Thresholds and implementation provisions with regard to types of procurement

Section 12

EU thresholds

With regard to thresholds applicable to the award of contracts EU thresholds which are based

on Commission Regulation (EC) 12512011 amending Directives 200417EC 200418EC and 200981EC of the European Parliament and of the Council shall be

1) EUR 400000 for public supply and service contracts and

2) EUR 5000000 for public works contracts

The European Commission shall revise the threshold values by means of a regulation every

two years in accordance with the procedure laid down in Article 68 of the Directive on Defence

and Security procurement and publish the revised thresholds in the Official Journal of the Eu-

ropean Union following the publication the thresholds laid down in subsection 1 shall be re-

placed by the new thresholds as revised by the European Commission The Ministry of Eco-

nomic Affairs and Employment must communicate without delay any changes to the EU

thresholds in the Official Journal in accordance with the revisions made by the Commission

Section 13

National thresholds

With the exception of a procurement rectification laid down in Section 85 and a prohibition to

appeal laid down in Section 104(2) this Act shall not apply to the following defence and securi-ty contracts

1) procurement of products and services whose estimated value excluding value added tax is less than EUR 100000

2) public works whose predetermined value excluding value added tax is less than EUR 500000

8

Section 14

Provisions applicable to the procurement of products and services and public works

contracts

The provisions of this Act with the exception of the provisions laid down in Title III shall apply

to the procurement of products and works referred to in Section 12(1) above exceeding the

EU threshold and to the procurement of the services listed in Annex A The provisions of this

Act are similarly applicable to the procurement of the services referred to in Annex A along

with the services referred to in Annex B provided that the value of the services referred to in

Annex A exceeds the value of the services referred to in Annex B and the total value of the contract exceeds the EU threshold

The provisions of Title II shall apply to the procurement of products and works and the ser-

vices listed in Annex A which are below the EU threshold referred to in Section 12(1) above but exceed the national threshold referred to in Section 13

The provisions of Title II shall not apply to the procurement the services listed in Annex B

However the provisions of Section 28 concerning the contract award notice obligation and di-

rect award of contract notification the provisions of Sections 37ndash38 concerning technical speci-

fications and technical specifications of environmental characteristics and the provisions of

Section 44 concerning proof provided by the tenderer shall apply to the procurement of the services listed in Annex B exceeding the EU threshold referred to in Section 12(1) above

Section 15

Provisions applicable to certain other contracts

The provisions of Title II shall not apply to contracts which fulfil the requirements of Article 346

(1)(b) of TFEU and whose value exceeds the national threshold laid down in Section 13

If the procurement of works products or services is included within the scope of application of

this Act but only a part of the procurement fulfils the requirements set in Article 346 (1)(b) of

TFEU and the procurement can be carried out on the basis of one contract only the provisions

of Title II shall not appply

Chapter 4

Calculation of the estimated value of a contract

Section 16

Calculation of the estimated value of a contract

The criterion for the calculation of the estimated value of a contract shall be the maximum to-

tal compensation excluding value added tax Calculation of the estimated value shall take ac-

count of any alternative methods of execution of the contract and option or extension clauses included in the contract

With regard to public works contracts calculation of the estimated value shall take account of

both the cost of the work and the total estimated value of the supplies necessary to execute the work and placed at the contractors disposal by the contracting authorityentity

Where the contract is being awarded at the same time in separate lots account shall be taken

of the total estimated value of all such lots when calculating the estimated value of the con-

tract Where the aggregate value of the lots exceeds the EU threshold laid down in Section 12

or the national threshold laid down in Section 13 the provisions of chapter 3 shall apply to the awarding of each lot separately

The provisions of this Act 10 shall not apply to lots whose estimated value is less than EUR

80000 for service and supply contracts and EUR 1 million for works provided that the aggre-

9

gate value of those lots does not exceed 20 of the aggregate value of the lots as a whole If

the estimated value of a work exceeds the national threshold laid down in Section 13 the con-tracting authorityentity shall act in line with the provisions laid down in Section 14(2)

The estimated value shall be the value at the time when the contracting authorityentity pub-lishes the procurement notice or otherwise commences the procurement procedure

Section 17

Calculating the estimated value of certain public service contracts

The value taken as a basis for calculating the estimated contract value shall be as follows

1) for insurance services the premiums payable and other forms of remuneration

2) for design contracts fees and commissions payable and other forms of remuneration

Section 18

Calculation of estimated value for the contract period

With regard to public supply contracts related to leasing hire rental or hire purchase of prod-

ucts the value to be taken as a basis for calculating the estimated contract value shall be as follows

1) in the case of fixed-term public contracts if that term is less than or equal to 12 months

the total estimated value for the term of the contract or if the term of the contract is greater

than 12 months the total value including the estimated residual value or

2) in the case of public contracts without a fixed term or the term of which cannot be defined the estimated monthly value multiplied by 48

In the case of public supply or service contracts which are regular in nature or which are in-

tended to be renewed within a given period the calculation of the estimated contract value shall be based on the following

1) either the total actual value of the successive contracts of the same type awarded during

the preceding 12 months or financial year adjusted to take account of the changes in quantity or value which would occur in the course of the 12 months following the initial contract or

2) the total estimated value of the successive contracts awarded during the 12 months follow-ing the first delivery or during the financial year if that is longer than 12 months

For public service contracts which do not indicate a total price the value to be taken as a basis for calculating the estimated contract value shall be as follows

1) in the case of fixed-term public contracts if that term is less than or equal to 48 months

the total estimated value for the term of the contract or

2) in the case of public contracts without a fixed term or if the term of the contract is greater than 48 months the estimated monthly value multiplied by 48

With regard to framework agreements the value to be taken into consideration in calculating

the estimated value of the contract shall be the total estimated value of all the contracts en-visaged for the term of the framework agreement

Section 19

Prohibition on artificial subdivision or combination of contracts

No public contract may be divided into lots severed or calculated using unusual methods with

the intention of excluding it from the scope of this Act A public supply or service contract may

not be combined with a works contract nor may contracts be otherwise artificially combined to prevent them coming within the scope of this Act

10

PART II

Provisions on public supply contracts primary public service contracts as defined in

Annex A and public works contracts above the EU threshold

Chapter 5

Contract award procedures

Section 20

Choosing the contract award procedure

The competition procedures for public contracts are defined in Section 3 points 9ndash13 Restrict-

ed or negotiated procedures shall be primarily used in awarding contracts Direct award of con-

tracts the competitive dialogue procedure and framework agreements may be used under the conditions laid down in Sections 22ndash27

In the restricted procedure negotiated procedure and competitive dialogue procedure the

contracting authorityentity may limit in advance the number of candidates they will invite to

tender The contracting authorityentity shall indicate in the contract notice the minimum

number of candidates they intend to invite and where appropriate the maximum number The

contracting authorityentity shall apply the minimum requirements indicated in the contract

notice and objective and non-discriminatory criteria in selecting the candidates invited to ten-der

In order to ensure genuine competition the number of candidates to be invited must be suffi-

cient in relation to the size and subject matter of the contract In the restricted procedure

negotiated procedure and competitive dialogue procedure a minimum of three candidates

shall be invited to tender unless there are fewer than three suitable candidates

The minimum number of candidates to be invited to tender shall be the number of candidates

set in advance by the contracting authorityentity If there are fewer suitable candidates the

contracting authorityentity may continue the procedure by inviting suitable candidates to

submit a tender or to commence negotiations Only those candidates which meet the minimum

criteria and have submitted a request to participate may be invited to tender

If the contracting authorityentity is of the opinion that the number of candidates is not suffi-

cient to ensure a genuine competition it may publish the original contract notice again and set

a new time limit for submission of participation requests The candidates invited to tender shall

be selected from among the candidates who have come forward on the basis of the original

and the new contract notice Publication of a new contract notice does not restrict the possible

interruption of the contract award procedure by the contracting authorityentity as laid down in Section 75

Section 21

Conduct of the negotiated procedure

The contracting authorityentity shall negotiate with the tenderers in order to adapt the ten-

ders submitted by them to the requirements set in the contract notice or invitation to tender

The purpose of the negotiations shall be to select the best tender in accordance with Section 57

The negotiations may take place in successive stages in order to reduce the number of tenders

to be discussed during the negotiations by applying the award criteria provided that the re-

course to a phased procedure and criteria applied during the negotiations are indicated in the

contract notice or invitation to tender

In order to ensure a genuine competition there must be a sufficient number of candidates provided that there is a sufficient number of tenderers and tenders that meet the criteria

The contracting authorityentity shall ensure equal treatment of all candidates and tenderers

during the negotiations and shall not provide information in a manner which may compromise the equal treatment of the participants in the competitive bidding

11

Section 22

Direct award of contracts

The contracting authorityentity may award public contracts by a direct award

1) when no tenders or suitable tenders or applications have been submitted in response to a

restricted procedure negotiated procedure or competitive dialogue procedure and the initial conditions of the contract are not substantially altered

2) when applications have been submitted in response to a restricted procedure negotiated

procedure or competitive dialogue procedure the contents of which do not correspond to the

requirements of the invitation to tender or if the tenders are not acceptable under Sections

39 41ndash43 46ndash56 60 and 62 an additional requirement shall be that the initial conditions of

the invitation to tender are not substantially altered and all tenderers which fulfil the minimum

requirements under Sections 46ndash54 and which have during the preceding procedure submitted

a tender which fulfills the format requirements of the tendering procedure shall be included in

the direct award of contracts

3) when for technical reasons or for reasons connected with the protection of exclusive rights

the contract may be awarded only to a particular supplier

4) when for reasons of urgency brought about by a crisis the time limits for the restricted pro-

cedure or negotiated procedure and the time limits for the accelerated procedure laid down in Section 30 cannot be complied with

5) when execution of the contract is absolutely necessary and the prescribed time limits can-

not be complied with for reasons of extreme urgency brought about by events unforeseeable by and independent of the contracting authorityentity

6) when the matter involves air and maritime transport services to armed forces or security

forces transferred or to be transferred abroad and such services can only be procured from

suppliers whose tenders are valid only for such a short period of time that compliance with the

set time limits is not possible

7) when the products to be acquired are manufactured purely for scientific and research pur-

poses and it is not a matter of securing the commercial viability of the products through mass production or to recover research and development costs

8) when the case involves a research and development service that has not been excluded from the scope of this Act on the basis of Section 8

9) for supplies quoted and purchased on a commodity market

10) for the purchase of supplies on particularly advantageous terms from either a supplier

winding up its business activities or from the receivers of a bankruptcy or liquidators in insol-vency proceedings an arrangement with creditors or a similar procedure

Section 23

Direct award of contracts for additional supplies

The contracting authorityentity may award contracts directly for additional supplies by the

original supplier which are intended either as a partial replacement or an extension of the pre-

vious delivery or installation provided that a change of supplier would oblige the contracting

authorityentity to acquire material with different technical characteristics which would result

in incompatibility or disproportionate technical difficulties in operation and maintenance The

validity period of such contracts and that of recurrent contracts may not exceed a maximum of

five years except in exceptional cases where the expected life cycle of the supplies equipment

or systems and the technical problems resulting from the change of supplier require a longer period of validity

In addition to the provisions laid down in subsection 1 the contracting authorityentity may

award contracts directly for additional works or services not included in the original contract

but which are to be acquired from the original supplier and have through unforeseen circum-

stances become necessary for the performance of the works or services as originally de-

scribed However such additional works or services cannot be technically or economically sep-

12

arated from the original contract without major inconvenience to the contracting authori-

tiesentities or when such works or services although separable from the performance of the

original contract are strictly necessary for the completion of the original contract In addition

the aggregate value of contracts awarded for additional works or services may not exceed

50 of the amount of the original contract

In addition to the provisions laid down in subsections 1 and 2 the contracting authorityentity

may award a contract for new works or services directly to the original supplier provided that

such works and services are in conformity with the contract awarded earlier according to the

restricted procedure The aforementioned procedure may be used on condition that the con-

tract notice for the original works or services indicates the possible use of a later direct award

of contract and provided that the estimated value of additional services or new public works

shall be taken into consideration when calculating the aggregate value of the original contract

Direct award of contract may be used only during the five years following the conclusion of the

original contract excluding exceptional conditions where the expected life cycle of the sup-

plies equipment or systems and the technical problems resulting from the change of supplier require a longer period of validity

Section 24

Competitive dialogue procedure

The contracting authorityentity may use the competitive dialogue procedure in particularly complex contracts where

1) the contracting authorityentity is not objectively able to specify the legal or financial condi-

tions of the contract or the technical solutions capable of satisfying their needs or objectives in accordance with Section 37(2)(2ndash4) and

2) the criterion used is to award the contract to the economically most advantageous tender

The contracting authorityentity shall ensure equal treatment of all tenderers and shall not

provide information in a manner that may compromise the equal treatment of the participants in competitive bidding

The contracting authorityentity may not reveal to the other participants in competitive bid-

ding solutions proposed by another tenderer or confidential information communicated during the negotiations without the agreement of the candidate or tenderer

The contracting authorityentity may pay monetary or other rewards to the participants in the competitive dialogue

Section 25

Conduct of the competitive dialogue

The contracting authorityentity shall publish a contract notice setting out their needs and re-

quirements for the contract The contracting authorityentity may further define the objective and content of the contract in a project description document

The contracting authorityentity shall initiate with the candidates selected in accordance with

the provisions of Sections 46ndash54 a dialogue the aim of which is to define one or more solu-

tions to fulfil the contract The contracting authorityentity may discuss all aspects of the con-tract with the candidates during this dialogue

The dialogue may take place in successive stages in order to reduce the number of tenders to

be discussed during the dialogue by applying the comparison criteria indicated in the invitation

to tender The contract notice or the project description shall indicate the recourse to a phased procedure and the criteria applied

The contracting authorityentity shall conclude the dialogue when it can identify the solutions

capable of realising the contract The contracting authorityentity shall inform the participants of the conclusion of the dialogue

The contracting authorityentity shall request the candidates to submit their final tenders on

the basis of the solutions presented and specified during the dialogue The tender shall contain

13

all the elements required for the performance of the project in accordance with the invitation

to tender In order to ensure a genuine competition the contracting authorityentity shall re-

quest tenders from a sufficient number of candidates provided that there is a sufficient num-ber of candidates or solutions that meet the criteria

The tenders shall be assessed on the basis of the comparison criteria indicated in the contract

notice or the project description The contracting authorityentity shall set the comparison cri-teria and award the contract in accordance with the provisions laid down in Section 57

The final tenders may be clarified and specified at the request of the contracting authori-

tyentity However such clarification or specification may not involve changes to the essential

features of the tenders or the invitations to tender in a manner that would distort competition

or have a discriminatory effect On the same conditions the contracting authorityentity may

ask the tenderer to clarify or specify aspects of or confirm commitments contained in the winning tender

Section 26

Framework agreement

The contracting authorityentit shall choose the suppliers pursuant to the framework agree-

ment by restricted or negotiated procedures The contracting authorityentity may also choose

the suppliers to the framework agreement by awarding the contract directly pursuant to the

provisions of Section 22 The suppliers to the framework agreement shall be admitted by ap-

plying the award criteria set in accordance with Chapter 8 Where a framework agreement is

concluded with several suppliers a minimum of three suppliers shall be selected unless there

are fewer suitable suppliers and admissible tenders that meet the award criteria

Contracts based on framework agreements shall be concluded with the original parties to the

agreement During the term of the agreement the parties may not make substantial amend-

ments to the terms laid down in the framework agreement The framework agreement may not be used in such a way as to distort restrict or prevent competition

The term of the framework agreement may not exceed seven years In exceptional cases the

framework agreement may be longer in duration when justified by the subject of the frame-

work agreement and taking into account the expected life cycle of the supplies equipment

and systems delivered and the technical problems that may result from the change of suppli-er

Section 27

Contracts based on a framework agreement

If the contracting authorityentity has concluded a framework agreement with a single suppli-

er contracts based on that agreement shall be awarded in accordance with the terms laid

down in the framework agreement The contracting authorityentity may ask the supplier to specify or supplement the tender in writing as needed

If the contracting authorityentity has concluded a framework agreement with several suppli-

ers contracts based on those agreements shall be awarded either by application of the terms

laid down in the framework agreement without reopening competition or where not all of the

terms are laid down in the framework agreement inviting the parties to the framework

agreement to tender in accordance with the terms of the framework agreement and where

appropriate with the terms of the call for tenders Where necessary the terms of the frame-

work agreement may be clarified or further defined

The contracting authorityentity carrying out a mini-competition to call off contracts under a

framework agreement shall ask the parties to the framework agreement capable of performing

the contract to submit a tender in writing The contracting authorityentity shall fix a time limit

which is sufficiently long to allow tenders to be submitted taking into account the subject mat-

ter of the contract the time needed to submit tenders and other similar factors The content of

the tenders shall remain confidential until the stipulated time limit of the mini-competition has

14

expired The contracting authorityentity shall choose the best tender in accordance with the

award criterion and comparison criteria indicated in the invitation to tender

Chapter 6

Mandatory publication of public contracts and time limits

Section 28

Publication requirement

When the procurement is carried out with the restricted procedure negotiated procedure or

competitive dialogue the contracting authorityentity shall provide for publication an infor-

mation notice concerning the procurement of the supplies when exceeding the EU threshold as

laid down in Section 12(1) above and the procurement of a service work and framework

agreement listed in Annex A The information notice shall include sufficient information to make a request to participate

The contracting authorityentity that has procured supplies exceeding the EU threshold as laid

down in Section 12(1) above or a service work or framework agreement listed in Annex A

shall provide a contract award notice for publication concerning the results of the award proce-

dure within 48 hours from concluding a public contract or framework agreement In addition

the contracting authorityentity shall provide a contract award notice for publication concerning

secondary service contracts which exceed the EU threshold as laid down in Section 12(1)

listed in Annex B and the suspension of the award procedure as laid down in Section 75 The

contract award notice concerning the suspension of the award procedure shall provide the rea-

sons for suspension The contract award notice concerning secondary service contracts as

listed in Annex B shall indicate whether the notice can be published The obligation to provide

a contract award notice for publication does not concern separate public contracts or direct award of contracts concluded within a framework agreement

The contracting authorityentity shall not provide information in the contract award notice the

publication of which is against the provisions laid down to protect the public interest or in par-

ticular the security of the state In addition the contracting authorityentity shall not provide

information which could endanger legally protected business secrets or harm commercial and healthy competition among tenderers

If the contracting authorityentity intends to benefit from the possibility to shorten regulated

bidding windows as laid down in Section 31(2) it shall provide a prior information notice for

publication The prior information notice shall provide the information available at the time the

notice is given on defence and security procurement that complies with the information in con-tract notice in the restricted procedure

In addition the contracting authorityentity may provide for publication a contract notice con-cerning a direct contract

More specific rules concerning the requirements for publication the means of communication

which may be used in sending the notices to be published their content publication and other

aspects of the requirement for publication shall be laid down in a Government decree

Section 29

Minimum time limits and fixing the time limits

When fixing time limits for tendering procedures the contracting authorityentity shall take

account of the quality and complexity of the procurement and the time required for drawing up

and submitting tenders Time limits shall be calculated from the date following the date on

which the contract notice is sent to be published In the case of a restricted procedure the

deadline fixed for the receipt of tenders shall be calculated from the date on which the invita-tion to tender was sent

In the case of a restricted procedure negotiated procedure and competitive dialogue the min-imum time limit for the submission of tenders shall be 37 days

15

In the case of a restricted procedure the minimum time limit for the receipt of tenders shall be

at least 40 days In the case of a negotiated procedure and competitive dialogue the deadline

fixed for the receipt of tenders shall be reasonable taking into account the subject matter and extent of the contract as well as other matters related thereto

Section 30

Accelerated procedure

In the case of restricted procedures and negotiated procedures the time limits laid down in

Section 29 above may be shortened if urgency renders them impracticable However the time

limit for the receipt of requests to participate shall be no less than 15 days or no less than 10

days if the notice is sent by electronic means In the case of the restricted procedure the min-imum time limit for the receipt of tenders shall be 10 days

Section 31

Reducing the time limits

The time limit set for the submission of participation requests can be restricted in the restrict-

ed procedure negotiated procedure and competitive dialogue by seven days if the contract

notices are sent for publication by electronic means

In restricted procedures the time limit for the receipt of tenders may be reduced to no less

than 22 days if the contracting authorityentity has sent the prior information notice for publi-

cation a minimum of 52 days and a maximum of 12 months before the date on which the con-tract notice was sent for publication

The time limit for the receipt of tenders may be reduced by an additional five days in the re-

stricted procedure provided that the contracting authorityentity offers full access to the con-

tract documents by electronic means from the date of publication of the notice specifying in the text of the notice the internet address where these documents are accessible

Section 32

Lengthening the time limits

The time limit for the receipt of tenders should be lengthened so that the bidders can familiar-

ise themselves with the information needed for drawing up the bids if the invitation to tender

documents or additional information that was requested in time have not been delivered within

the prescribed time limits or if submitting the bid requires an on-site visit or an on-site exam-ination of the documents related to the invitation to tender

Chapter 7

Invitation to tender and defining the object of the contract

Section 33

Invitation to tender

The invitation to tender shall be submitted in writing and drawn up to be sufficiently clear in

order to enable submission of commensurate and mutually comparable tenders The invitation

to tender or the contract notice shall invite suppliers to submit their tenders in writing by the

deadline

In case of a discrepancy between the invitation to tender and the contract notice the contract

notice shall apply

The contracting authorityentity may charge a reasonable fee for the invitation-to-tender doc-

uments to recover the costs arising from the exceptionally extensive scope of the documenta-tion the materials related thereto or other similar factors

2

Section 3

Definitions

For the purposes of this Act and the regulations based thereon the following terms shall have

the following meanings

1) Public contracts are contracts for pecuniary interest concluded in writing between one or

more contracting entities and one or more suppliers and having as their object the execution of works the supply of products or the provision of services

2) Public works contracts are public contracts having as their object either the execution or

both the design and execution of works related to one of the activities referred to in Annex C

or the realisation by whatever means of a work corresponding to the requirements specified

by the contracting authorityentity a work may be an economic or technical entity that con-sists of building civil or hydraulic engineering works

3) Public supply contracts are public contracts other than public works contracts having as

their object the purchase lease rental or hire purchase with or without the option to buy of

products a public contract which also includes assembly and installation operations as its ob-ject shall also be considered a public supply contract

4) Public service contracts are contracts other than public works or public supply contracts

having as their object the provision of services a public contract having as its object both

products and services shall also be considered a public service contract if the value of the ser-

vices is greater than that of the products a public contract that in addition to services includes

works activities referred to in Annex C and such works activities are only ancillary with respect to the primary object of the procurement shall also be considered a public service contract

5) Sub-contract agreements are contracts for pecuniary interest concluded in writing between

the tenderer selected as the contracting party and one or more suppliers and having as their

object the execution of works the supply of products or the provision of services

6) Supplier means any natural or legal person or public entity or group of such persons or enti-

ties which offers on the market products or services or the execution of a work or works

7) Candidate is a supplier that has declared its willingness to participate in a restricted or ne-gotiated procedure or a competitive dialogue procedure

8) Tenderer is a supplier who has submitted a tender

9) Restricted procedure means a procurement procedure in which the contracting authori-

tyentity publishes a contract notice concerning the procurement and any interested suppliers

may request to participate only those candidates selected by the contracting authorityentity may submit a tender

10) Negotiated procedure means a procurement procedure in which the contracting authori-

tyentity publishes a contract notice concerning the procurement and any interested suppliers

may request to participate the contracting authorityentity negotiates the terms of the con-

tract with the suppliers it has selected

11) Direct award of contract means a procurement procedure in which the contracting authori-

tyentity admits to the procedure one or more suppliers without publication of a contract no-tice and negotiates the terms of the contract with these

12) Competitive dialogue means a procurement procedure in which the contracting authori-

tyentity publishes a contract notice concerning the procurement and any supplier may request

to participate the contracting authorityentity conducts a dialogue with the candidates admit-

ted to that procedure with the aim of finding one or more solutions capable of meeting its re-quirements and on the basis of which selected candidates are invited to tender

13) Framework agreement is an agreement between one or more contracting entities and one

or more suppliers the purpose of which is to establish the terms such as prices and planned quantities of contracts to be awarded during a given period of time

14) Classified document means a document or the information it contains to which a certain

level of security classification has been attributed

3

15) Crisis means any situation in Finland or in another country in which a harmful event has

occurred which clearly exceeds the dimensions of harmful events in everyday life and which

substantially endangers or restricts the life and health of people or has a substantial impact

on property values or the measures to supply the population with necessities have been sub-

stantially endangered or restrictred a crisis shall also be deemed to have arisen if the occur-

rence of such a harmful event is deemed to be impending armed conflicts and wars are con-

sidered to constitute a crisis for the purposes of this Act

16) Research and development means all activities consisting of basic and applied research

and experimental development the latter may include the equipment used to introduce the

new concept or technology in an appropriate or typical setting

17) Technical specification means the definition of the characteristics required of a product

service or materials that are the object of the procurement these characteristics shall include inter alia requirements for v

levels of quality or environmental protection design conformity and applicability assessment

of the use of the product product safety and measurements the name under which the prod-

uct is sold terminology symbols testing and test methods package markings labelling user

instructions production processes and methods and conformity assessment in the case of

public works contracts technical specifications also include rules related to design cost ac-

counting testing and inspection acceptance conditions construction methods and techniques and other technical requirements related to finished works and materials or parts thereof

18) Standard means a technical specification which has been published as a standard ap-

proved by a recognised standardising body for repeated or continued application compliance with which is not compulsory and which falls in one of the following categories

a) International in which case the standard is adopted by an international standards organisa-tion and is available to the general public

a) European in which case the standard is adopted by a European standards organisation and is available to the general public or

a) National in which case the standard is adopted by a national standards organisation and is

available to the general public

d) Defence industry-related in which case the standard is approved by an international re-

gional or national standardising body specialised in drawing up technical specifications for re-

peated and continuous use in the defence industry and compliance with the standard is not compulsory

19) European technical approval means a favourable technical assessment issued by an ap-

proval body appointed by a European Union member state stating that the building works

product in question is suitable for a particular purpose approval is based on the fulfilment of

the essential requirements for building works based on which the inherent characteristics of the product are specified and the defined conditions in which the product is used

20) Official technical specification is a technical specification which has been approved by Eu-

ropean Union member states and published in the Official Journal of the European Union

21) Technical reference means any technical specification ndash other than the official standard ndash

drawn up by a European standardisation body according to procedures adopted for the devel-opment of market needs

22) Recognised body means test and calibration laboratories and inspection and certification

bodies which comply with applicable European standards the contracting authorityentity shall

also accept certificates from recognised bodies in other European Union member states

23) Life cycle means any and all subsequent stages the product goes through ie research

and development industrial development production repair modernisation modification

maintenance logistics and the organisation of logistics storage transport training testing

removal and destruction

24) Common procurement vocabulary (CPV)) means the reference nomenclature laid down by

Regulation (EC) No 21952002 of the European Parliament and of the Council on the common procurement vocabulary

4

25) The expression written or in writing means a combination of words or figures which can be

read reproduced and subsequently communicated it may include information which is trans-mitted and stored by electronic means

26) The expression electronic format means a form of communication which uses electrotech-

nical equipment for the processing and storage of data which is transmitted conveyed and

received by wire radio or optical or other electromagnetic means

Chapter 2

Scope of application

Section 4

Contracting entities

For the purposes of this Act contracting entities shall mean

1) State and municipal authorities and joint municipal authorities

2) State enterprises in accordance with the State Enterprise Act (11852002)

3) Bodies governed by public law meaning legal persons established for the specific purpose

of meeting needs in the general interest and not having an industrial or commercial character

and

a) financed for the most part by the contracting authorityentity referred to in point 1ndash3

b) whose management is subject to supervision by the contracting authorityentity referred to

in point 1ndash3 or

c) having an administrative managerial or supervisory board more than half of whose mem-bers are appointed by the contracting authorityentity referred to in point 1ndash3

4) contracting entities 1 in accordance with Section 5 of the Act on Public Procurement by Enti-

ties in the Water Energy Transport and Postal Services Sector (3492007) hereafter referred to as the Act on Public Contracts in Special Sectors

Section 5

Procurement in the fields of defence and security

Unless otherwise prescribed in articles 36 51 52 or 62 of the Treaty on the Functioning of the

European Union hereafter TFEU this Act shall apply to defence and security related procure-

ment by contracting entities referred to in Section 4

Procurement in the field of defence means

1) Defence equipment or parts or components thereof

2) Public works products or services directly related to a phase in the life cycle of products

referred to in point 1

3) Public works or services used specifically for military purposes

Procurement in the field of security means

1) Products which are meant to be used for security purposes and for the procurement of

which classified documents are submitted drawn up or otherwise dealth with and parts com-

ponents thereof

2) Public works products or services directly related to a phase in the life cycle of products

referred to in point 1

5

3) Public works or services meant to be used for security purposes and for the procurement of

which classified documents are submitted drawn up or otherwise dealth with

Defence equipment refers to products which are specifically designed or adjusted for military

purposes and meant to be used as a weapon ammunition or defence materiel

Section 6

Public contracts applicable to several functions and the application of the Act on pub-

lic contracts

If the procurement of works products or services is included in part within the scope of appli-

cation of this Act and in part within the scope of the Act on Public Contracts (3482007)

hereafter referred to as the Public Procurement Act or within the scope of application of the

Act on public contracts in special sectors it shall be conducted in accordance with this Act

provided that objective reasons justify the execution of one single contract

If the procurement of works products or services is included only in part within the scope of

application of this Act while at the same time being excluded from the scope of application of

the Public Procurement Act or the Act on Public Contracts in Special Sectors and the procure-

ment can be carried out on the basis of one contract only the provisions of this Act shall not

apply with the exception of a procurement rectification laid down in Section 85 of this Act and

the prohibition to appeal laid down in Section 104(2)

The procurement shall not be carried out as one contract for the purpose of avoiding the appli-

cation of the provisions of this Act the Procurement Act or the Act on public contracts in spe-cial sectors

The contracting authorityentity may decide to apply the provisions of the Public Procurement

Act in the procurement of a product service or work instead of this Act The Public Procure-

ment Act will then be applied in its entirety while Section 77(3) shall be applied to the notifica-tion of the decision made by the contracting authorityentity

Section 7

General exclusions from the scope of application of this Act

With the exception of a procurement rectification laid down in Section 85 and a prohibition to

appeal laid down in Section 104(2) this act shall not apply to

1) Defence and security procurement when declared secret or when the application of this Act

would oblige the contracting authorityentity to disclose information the publishing of which is

against the essential security interests of the state

2) Defence and security procurement between authorities

3) Defence and security procurement to which the following points apply

a) special procedural provisions between Finland and at least one state outside

the European Economic Area on the basis of an international treaty or ar-

rangement

b) special procedural provisions based on an international treaty or arrange-

ment related to the placement of troops

c) special procedural provisions of an international organisation when such or-

ganisation conducts procurement for its own purposes or

d) special procedural provisions of an international organisation when the con-

tracting authorityentity is obliged to carry out the procurement in accord-

ance with such provisions

6

4) Defence and security procurement related to a joint new product research and development

project between at least two European Economic Area member states and not to procure-

ment which has been executed during the later stages in the life cycle of this product or

5) Procurement executed in connection with sending troops to areas outside the European

Economic Area and carried out when the procurement ndash for operational requirements ndash must

be conducted with a supplier operating in that area

This act shall also not apply to

1) Defence and security procurement carried out by the contracting authorityentity referred to

in Section 4(1)(4) and when the value of the contract does not exceed the EU threshold val-

ues in accordance with Section 12 and

2) defence and security procurement carried out to perform a function in terms of which it has

been confirmed by a decision of the European Commission ndash in accordance with Section 11 of

the Act on public contracts in special sectors ndash that the function is open to direct competition in markets that have no restrictions on entry

If all of the participants in the research and development project referred to in subsection 1

point 4 above are member states of the European Union the European Commission must be

informed of such a search and development project The notice must be issued when the re-

search and development project is started and must include information on the cost-sharing

agreement between the parties the share of research and development expenditure relative to

the total costs of the project and in the event that the planned procurement involves member states their shares

Section 8

Specific exclusions from the scope of application of this Act

With the exception of a procurement rectification laid down in Section 85 and a prohibition to

appeal laid down in Section 104(2) this Act shall not apply to defence and security procure-ment related to intelligence activities

Similarly with the exception of a procurement rectification laid down in Section 85 and a pro-

hibition to appeal laid down in Section 104(2) this Act shall also not apply to defence and se-curity procurement concerning

1) the acquisition or rental ndash by whatever form of financing ndash of land existing buildings or oth-er immovable property or services related to the rights concerning them

2) arbitration and conciliation services

3) financial services with the exception of insurance services

4) employment contracts

5) research and development services other than those where the benefits accrue exclusively

to the contracting authorityentity for use in the conduct of its own affairs on condition that the service provided is wholly remunerated by the contracting authorityentity

Section 9

Procurement from in-house companies

This Act shall not apply to defence and security procurement from a body formally separate

and ndash in terms of decision making ndash independent of the contracting authorityentity carrying

out the procurement provided that the contracting authorityentity ndash by itself or in coopera-

tion with other contracting entities ndash oversees the body in question in the same way it over-

sees its own places of operation and the body conducts the majority of its operations with

those contracting entities under whose control it operates

7

Section 10

Procurement from or through a central purchasing body

Contracting entities which purchase products services or works that fall within the scope of

application of this Act from or through a central purchasing body shall be deemed to have complied with this Act insofar as the central purchasing body has complied with it

A central purchasing body is a contracting authorityentity or a European public body which

acquires supplies or services for the contracting entities or executes ndash on their behalf ndash public contracts or framework agreements on supplies services or works

Section 11

Reserving procurement for sheltered workshops

A contracting authorityentity may limit participation in competitive bidding to sheltered work-

shops or similar bodies or provide for such contracts to be carried out in the context of shel-

tered employment programmes where most of the employees concerned are people with disa-

bilities who by reason of the nature or seriousness of their disabilities cannot carry on occu-

pational activity under normal conditions The public contract notice must indicate that the

contract is reserved for sheltered workshops or shall be carried out in the context of sheltered

employment programmes

Chapter 3

Thresholds and implementation provisions with regard to types of procurement

Section 12

EU thresholds

With regard to thresholds applicable to the award of contracts EU thresholds which are based

on Commission Regulation (EC) 12512011 amending Directives 200417EC 200418EC and 200981EC of the European Parliament and of the Council shall be

1) EUR 400000 for public supply and service contracts and

2) EUR 5000000 for public works contracts

The European Commission shall revise the threshold values by means of a regulation every

two years in accordance with the procedure laid down in Article 68 of the Directive on Defence

and Security procurement and publish the revised thresholds in the Official Journal of the Eu-

ropean Union following the publication the thresholds laid down in subsection 1 shall be re-

placed by the new thresholds as revised by the European Commission The Ministry of Eco-

nomic Affairs and Employment must communicate without delay any changes to the EU

thresholds in the Official Journal in accordance with the revisions made by the Commission

Section 13

National thresholds

With the exception of a procurement rectification laid down in Section 85 and a prohibition to

appeal laid down in Section 104(2) this Act shall not apply to the following defence and securi-ty contracts

1) procurement of products and services whose estimated value excluding value added tax is less than EUR 100000

2) public works whose predetermined value excluding value added tax is less than EUR 500000

8

Section 14

Provisions applicable to the procurement of products and services and public works

contracts

The provisions of this Act with the exception of the provisions laid down in Title III shall apply

to the procurement of products and works referred to in Section 12(1) above exceeding the

EU threshold and to the procurement of the services listed in Annex A The provisions of this

Act are similarly applicable to the procurement of the services referred to in Annex A along

with the services referred to in Annex B provided that the value of the services referred to in

Annex A exceeds the value of the services referred to in Annex B and the total value of the contract exceeds the EU threshold

The provisions of Title II shall apply to the procurement of products and works and the ser-

vices listed in Annex A which are below the EU threshold referred to in Section 12(1) above but exceed the national threshold referred to in Section 13

The provisions of Title II shall not apply to the procurement the services listed in Annex B

However the provisions of Section 28 concerning the contract award notice obligation and di-

rect award of contract notification the provisions of Sections 37ndash38 concerning technical speci-

fications and technical specifications of environmental characteristics and the provisions of

Section 44 concerning proof provided by the tenderer shall apply to the procurement of the services listed in Annex B exceeding the EU threshold referred to in Section 12(1) above

Section 15

Provisions applicable to certain other contracts

The provisions of Title II shall not apply to contracts which fulfil the requirements of Article 346

(1)(b) of TFEU and whose value exceeds the national threshold laid down in Section 13

If the procurement of works products or services is included within the scope of application of

this Act but only a part of the procurement fulfils the requirements set in Article 346 (1)(b) of

TFEU and the procurement can be carried out on the basis of one contract only the provisions

of Title II shall not appply

Chapter 4

Calculation of the estimated value of a contract

Section 16

Calculation of the estimated value of a contract

The criterion for the calculation of the estimated value of a contract shall be the maximum to-

tal compensation excluding value added tax Calculation of the estimated value shall take ac-

count of any alternative methods of execution of the contract and option or extension clauses included in the contract

With regard to public works contracts calculation of the estimated value shall take account of

both the cost of the work and the total estimated value of the supplies necessary to execute the work and placed at the contractors disposal by the contracting authorityentity

Where the contract is being awarded at the same time in separate lots account shall be taken

of the total estimated value of all such lots when calculating the estimated value of the con-

tract Where the aggregate value of the lots exceeds the EU threshold laid down in Section 12

or the national threshold laid down in Section 13 the provisions of chapter 3 shall apply to the awarding of each lot separately

The provisions of this Act 10 shall not apply to lots whose estimated value is less than EUR

80000 for service and supply contracts and EUR 1 million for works provided that the aggre-

9

gate value of those lots does not exceed 20 of the aggregate value of the lots as a whole If

the estimated value of a work exceeds the national threshold laid down in Section 13 the con-tracting authorityentity shall act in line with the provisions laid down in Section 14(2)

The estimated value shall be the value at the time when the contracting authorityentity pub-lishes the procurement notice or otherwise commences the procurement procedure

Section 17

Calculating the estimated value of certain public service contracts

The value taken as a basis for calculating the estimated contract value shall be as follows

1) for insurance services the premiums payable and other forms of remuneration

2) for design contracts fees and commissions payable and other forms of remuneration

Section 18

Calculation of estimated value for the contract period

With regard to public supply contracts related to leasing hire rental or hire purchase of prod-

ucts the value to be taken as a basis for calculating the estimated contract value shall be as follows

1) in the case of fixed-term public contracts if that term is less than or equal to 12 months

the total estimated value for the term of the contract or if the term of the contract is greater

than 12 months the total value including the estimated residual value or

2) in the case of public contracts without a fixed term or the term of which cannot be defined the estimated monthly value multiplied by 48

In the case of public supply or service contracts which are regular in nature or which are in-

tended to be renewed within a given period the calculation of the estimated contract value shall be based on the following

1) either the total actual value of the successive contracts of the same type awarded during

the preceding 12 months or financial year adjusted to take account of the changes in quantity or value which would occur in the course of the 12 months following the initial contract or

2) the total estimated value of the successive contracts awarded during the 12 months follow-ing the first delivery or during the financial year if that is longer than 12 months

For public service contracts which do not indicate a total price the value to be taken as a basis for calculating the estimated contract value shall be as follows

1) in the case of fixed-term public contracts if that term is less than or equal to 48 months

the total estimated value for the term of the contract or

2) in the case of public contracts without a fixed term or if the term of the contract is greater than 48 months the estimated monthly value multiplied by 48

With regard to framework agreements the value to be taken into consideration in calculating

the estimated value of the contract shall be the total estimated value of all the contracts en-visaged for the term of the framework agreement

Section 19

Prohibition on artificial subdivision or combination of contracts

No public contract may be divided into lots severed or calculated using unusual methods with

the intention of excluding it from the scope of this Act A public supply or service contract may

not be combined with a works contract nor may contracts be otherwise artificially combined to prevent them coming within the scope of this Act

10

PART II

Provisions on public supply contracts primary public service contracts as defined in

Annex A and public works contracts above the EU threshold

Chapter 5

Contract award procedures

Section 20

Choosing the contract award procedure

The competition procedures for public contracts are defined in Section 3 points 9ndash13 Restrict-

ed or negotiated procedures shall be primarily used in awarding contracts Direct award of con-

tracts the competitive dialogue procedure and framework agreements may be used under the conditions laid down in Sections 22ndash27

In the restricted procedure negotiated procedure and competitive dialogue procedure the

contracting authorityentity may limit in advance the number of candidates they will invite to

tender The contracting authorityentity shall indicate in the contract notice the minimum

number of candidates they intend to invite and where appropriate the maximum number The

contracting authorityentity shall apply the minimum requirements indicated in the contract

notice and objective and non-discriminatory criteria in selecting the candidates invited to ten-der

In order to ensure genuine competition the number of candidates to be invited must be suffi-

cient in relation to the size and subject matter of the contract In the restricted procedure

negotiated procedure and competitive dialogue procedure a minimum of three candidates

shall be invited to tender unless there are fewer than three suitable candidates

The minimum number of candidates to be invited to tender shall be the number of candidates

set in advance by the contracting authorityentity If there are fewer suitable candidates the

contracting authorityentity may continue the procedure by inviting suitable candidates to

submit a tender or to commence negotiations Only those candidates which meet the minimum

criteria and have submitted a request to participate may be invited to tender

If the contracting authorityentity is of the opinion that the number of candidates is not suffi-

cient to ensure a genuine competition it may publish the original contract notice again and set

a new time limit for submission of participation requests The candidates invited to tender shall

be selected from among the candidates who have come forward on the basis of the original

and the new contract notice Publication of a new contract notice does not restrict the possible

interruption of the contract award procedure by the contracting authorityentity as laid down in Section 75

Section 21

Conduct of the negotiated procedure

The contracting authorityentity shall negotiate with the tenderers in order to adapt the ten-

ders submitted by them to the requirements set in the contract notice or invitation to tender

The purpose of the negotiations shall be to select the best tender in accordance with Section 57

The negotiations may take place in successive stages in order to reduce the number of tenders

to be discussed during the negotiations by applying the award criteria provided that the re-

course to a phased procedure and criteria applied during the negotiations are indicated in the

contract notice or invitation to tender

In order to ensure a genuine competition there must be a sufficient number of candidates provided that there is a sufficient number of tenderers and tenders that meet the criteria

The contracting authorityentity shall ensure equal treatment of all candidates and tenderers

during the negotiations and shall not provide information in a manner which may compromise the equal treatment of the participants in the competitive bidding

11

Section 22

Direct award of contracts

The contracting authorityentity may award public contracts by a direct award

1) when no tenders or suitable tenders or applications have been submitted in response to a

restricted procedure negotiated procedure or competitive dialogue procedure and the initial conditions of the contract are not substantially altered

2) when applications have been submitted in response to a restricted procedure negotiated

procedure or competitive dialogue procedure the contents of which do not correspond to the

requirements of the invitation to tender or if the tenders are not acceptable under Sections

39 41ndash43 46ndash56 60 and 62 an additional requirement shall be that the initial conditions of

the invitation to tender are not substantially altered and all tenderers which fulfil the minimum

requirements under Sections 46ndash54 and which have during the preceding procedure submitted

a tender which fulfills the format requirements of the tendering procedure shall be included in

the direct award of contracts

3) when for technical reasons or for reasons connected with the protection of exclusive rights

the contract may be awarded only to a particular supplier

4) when for reasons of urgency brought about by a crisis the time limits for the restricted pro-

cedure or negotiated procedure and the time limits for the accelerated procedure laid down in Section 30 cannot be complied with

5) when execution of the contract is absolutely necessary and the prescribed time limits can-

not be complied with for reasons of extreme urgency brought about by events unforeseeable by and independent of the contracting authorityentity

6) when the matter involves air and maritime transport services to armed forces or security

forces transferred or to be transferred abroad and such services can only be procured from

suppliers whose tenders are valid only for such a short period of time that compliance with the

set time limits is not possible

7) when the products to be acquired are manufactured purely for scientific and research pur-

poses and it is not a matter of securing the commercial viability of the products through mass production or to recover research and development costs

8) when the case involves a research and development service that has not been excluded from the scope of this Act on the basis of Section 8

9) for supplies quoted and purchased on a commodity market

10) for the purchase of supplies on particularly advantageous terms from either a supplier

winding up its business activities or from the receivers of a bankruptcy or liquidators in insol-vency proceedings an arrangement with creditors or a similar procedure

Section 23

Direct award of contracts for additional supplies

The contracting authorityentity may award contracts directly for additional supplies by the

original supplier which are intended either as a partial replacement or an extension of the pre-

vious delivery or installation provided that a change of supplier would oblige the contracting

authorityentity to acquire material with different technical characteristics which would result

in incompatibility or disproportionate technical difficulties in operation and maintenance The

validity period of such contracts and that of recurrent contracts may not exceed a maximum of

five years except in exceptional cases where the expected life cycle of the supplies equipment

or systems and the technical problems resulting from the change of supplier require a longer period of validity

In addition to the provisions laid down in subsection 1 the contracting authorityentity may

award contracts directly for additional works or services not included in the original contract

but which are to be acquired from the original supplier and have through unforeseen circum-

stances become necessary for the performance of the works or services as originally de-

scribed However such additional works or services cannot be technically or economically sep-

12

arated from the original contract without major inconvenience to the contracting authori-

tiesentities or when such works or services although separable from the performance of the

original contract are strictly necessary for the completion of the original contract In addition

the aggregate value of contracts awarded for additional works or services may not exceed

50 of the amount of the original contract

In addition to the provisions laid down in subsections 1 and 2 the contracting authorityentity

may award a contract for new works or services directly to the original supplier provided that

such works and services are in conformity with the contract awarded earlier according to the

restricted procedure The aforementioned procedure may be used on condition that the con-

tract notice for the original works or services indicates the possible use of a later direct award

of contract and provided that the estimated value of additional services or new public works

shall be taken into consideration when calculating the aggregate value of the original contract

Direct award of contract may be used only during the five years following the conclusion of the

original contract excluding exceptional conditions where the expected life cycle of the sup-

plies equipment or systems and the technical problems resulting from the change of supplier require a longer period of validity

Section 24

Competitive dialogue procedure

The contracting authorityentity may use the competitive dialogue procedure in particularly complex contracts where

1) the contracting authorityentity is not objectively able to specify the legal or financial condi-

tions of the contract or the technical solutions capable of satisfying their needs or objectives in accordance with Section 37(2)(2ndash4) and

2) the criterion used is to award the contract to the economically most advantageous tender

The contracting authorityentity shall ensure equal treatment of all tenderers and shall not

provide information in a manner that may compromise the equal treatment of the participants in competitive bidding

The contracting authorityentity may not reveal to the other participants in competitive bid-

ding solutions proposed by another tenderer or confidential information communicated during the negotiations without the agreement of the candidate or tenderer

The contracting authorityentity may pay monetary or other rewards to the participants in the competitive dialogue

Section 25

Conduct of the competitive dialogue

The contracting authorityentity shall publish a contract notice setting out their needs and re-

quirements for the contract The contracting authorityentity may further define the objective and content of the contract in a project description document

The contracting authorityentity shall initiate with the candidates selected in accordance with

the provisions of Sections 46ndash54 a dialogue the aim of which is to define one or more solu-

tions to fulfil the contract The contracting authorityentity may discuss all aspects of the con-tract with the candidates during this dialogue

The dialogue may take place in successive stages in order to reduce the number of tenders to

be discussed during the dialogue by applying the comparison criteria indicated in the invitation

to tender The contract notice or the project description shall indicate the recourse to a phased procedure and the criteria applied

The contracting authorityentity shall conclude the dialogue when it can identify the solutions

capable of realising the contract The contracting authorityentity shall inform the participants of the conclusion of the dialogue

The contracting authorityentity shall request the candidates to submit their final tenders on

the basis of the solutions presented and specified during the dialogue The tender shall contain

13

all the elements required for the performance of the project in accordance with the invitation

to tender In order to ensure a genuine competition the contracting authorityentity shall re-

quest tenders from a sufficient number of candidates provided that there is a sufficient num-ber of candidates or solutions that meet the criteria

The tenders shall be assessed on the basis of the comparison criteria indicated in the contract

notice or the project description The contracting authorityentity shall set the comparison cri-teria and award the contract in accordance with the provisions laid down in Section 57

The final tenders may be clarified and specified at the request of the contracting authori-

tyentity However such clarification or specification may not involve changes to the essential

features of the tenders or the invitations to tender in a manner that would distort competition

or have a discriminatory effect On the same conditions the contracting authorityentity may

ask the tenderer to clarify or specify aspects of or confirm commitments contained in the winning tender

Section 26

Framework agreement

The contracting authorityentit shall choose the suppliers pursuant to the framework agree-

ment by restricted or negotiated procedures The contracting authorityentity may also choose

the suppliers to the framework agreement by awarding the contract directly pursuant to the

provisions of Section 22 The suppliers to the framework agreement shall be admitted by ap-

plying the award criteria set in accordance with Chapter 8 Where a framework agreement is

concluded with several suppliers a minimum of three suppliers shall be selected unless there

are fewer suitable suppliers and admissible tenders that meet the award criteria

Contracts based on framework agreements shall be concluded with the original parties to the

agreement During the term of the agreement the parties may not make substantial amend-

ments to the terms laid down in the framework agreement The framework agreement may not be used in such a way as to distort restrict or prevent competition

The term of the framework agreement may not exceed seven years In exceptional cases the

framework agreement may be longer in duration when justified by the subject of the frame-

work agreement and taking into account the expected life cycle of the supplies equipment

and systems delivered and the technical problems that may result from the change of suppli-er

Section 27

Contracts based on a framework agreement

If the contracting authorityentity has concluded a framework agreement with a single suppli-

er contracts based on that agreement shall be awarded in accordance with the terms laid

down in the framework agreement The contracting authorityentity may ask the supplier to specify or supplement the tender in writing as needed

If the contracting authorityentity has concluded a framework agreement with several suppli-

ers contracts based on those agreements shall be awarded either by application of the terms

laid down in the framework agreement without reopening competition or where not all of the

terms are laid down in the framework agreement inviting the parties to the framework

agreement to tender in accordance with the terms of the framework agreement and where

appropriate with the terms of the call for tenders Where necessary the terms of the frame-

work agreement may be clarified or further defined

The contracting authorityentity carrying out a mini-competition to call off contracts under a

framework agreement shall ask the parties to the framework agreement capable of performing

the contract to submit a tender in writing The contracting authorityentity shall fix a time limit

which is sufficiently long to allow tenders to be submitted taking into account the subject mat-

ter of the contract the time needed to submit tenders and other similar factors The content of

the tenders shall remain confidential until the stipulated time limit of the mini-competition has

14

expired The contracting authorityentity shall choose the best tender in accordance with the

award criterion and comparison criteria indicated in the invitation to tender

Chapter 6

Mandatory publication of public contracts and time limits

Section 28

Publication requirement

When the procurement is carried out with the restricted procedure negotiated procedure or

competitive dialogue the contracting authorityentity shall provide for publication an infor-

mation notice concerning the procurement of the supplies when exceeding the EU threshold as

laid down in Section 12(1) above and the procurement of a service work and framework

agreement listed in Annex A The information notice shall include sufficient information to make a request to participate

The contracting authorityentity that has procured supplies exceeding the EU threshold as laid

down in Section 12(1) above or a service work or framework agreement listed in Annex A

shall provide a contract award notice for publication concerning the results of the award proce-

dure within 48 hours from concluding a public contract or framework agreement In addition

the contracting authorityentity shall provide a contract award notice for publication concerning

secondary service contracts which exceed the EU threshold as laid down in Section 12(1)

listed in Annex B and the suspension of the award procedure as laid down in Section 75 The

contract award notice concerning the suspension of the award procedure shall provide the rea-

sons for suspension The contract award notice concerning secondary service contracts as

listed in Annex B shall indicate whether the notice can be published The obligation to provide

a contract award notice for publication does not concern separate public contracts or direct award of contracts concluded within a framework agreement

The contracting authorityentity shall not provide information in the contract award notice the

publication of which is against the provisions laid down to protect the public interest or in par-

ticular the security of the state In addition the contracting authorityentity shall not provide

information which could endanger legally protected business secrets or harm commercial and healthy competition among tenderers

If the contracting authorityentity intends to benefit from the possibility to shorten regulated

bidding windows as laid down in Section 31(2) it shall provide a prior information notice for

publication The prior information notice shall provide the information available at the time the

notice is given on defence and security procurement that complies with the information in con-tract notice in the restricted procedure

In addition the contracting authorityentity may provide for publication a contract notice con-cerning a direct contract

More specific rules concerning the requirements for publication the means of communication

which may be used in sending the notices to be published their content publication and other

aspects of the requirement for publication shall be laid down in a Government decree

Section 29

Minimum time limits and fixing the time limits

When fixing time limits for tendering procedures the contracting authorityentity shall take

account of the quality and complexity of the procurement and the time required for drawing up

and submitting tenders Time limits shall be calculated from the date following the date on

which the contract notice is sent to be published In the case of a restricted procedure the

deadline fixed for the receipt of tenders shall be calculated from the date on which the invita-tion to tender was sent

In the case of a restricted procedure negotiated procedure and competitive dialogue the min-imum time limit for the submission of tenders shall be 37 days

15

In the case of a restricted procedure the minimum time limit for the receipt of tenders shall be

at least 40 days In the case of a negotiated procedure and competitive dialogue the deadline

fixed for the receipt of tenders shall be reasonable taking into account the subject matter and extent of the contract as well as other matters related thereto

Section 30

Accelerated procedure

In the case of restricted procedures and negotiated procedures the time limits laid down in

Section 29 above may be shortened if urgency renders them impracticable However the time

limit for the receipt of requests to participate shall be no less than 15 days or no less than 10

days if the notice is sent by electronic means In the case of the restricted procedure the min-imum time limit for the receipt of tenders shall be 10 days

Section 31

Reducing the time limits

The time limit set for the submission of participation requests can be restricted in the restrict-

ed procedure negotiated procedure and competitive dialogue by seven days if the contract

notices are sent for publication by electronic means

In restricted procedures the time limit for the receipt of tenders may be reduced to no less

than 22 days if the contracting authorityentity has sent the prior information notice for publi-

cation a minimum of 52 days and a maximum of 12 months before the date on which the con-tract notice was sent for publication

The time limit for the receipt of tenders may be reduced by an additional five days in the re-

stricted procedure provided that the contracting authorityentity offers full access to the con-

tract documents by electronic means from the date of publication of the notice specifying in the text of the notice the internet address where these documents are accessible

Section 32

Lengthening the time limits

The time limit for the receipt of tenders should be lengthened so that the bidders can familiar-

ise themselves with the information needed for drawing up the bids if the invitation to tender

documents or additional information that was requested in time have not been delivered within

the prescribed time limits or if submitting the bid requires an on-site visit or an on-site exam-ination of the documents related to the invitation to tender

Chapter 7

Invitation to tender and defining the object of the contract

Section 33

Invitation to tender

The invitation to tender shall be submitted in writing and drawn up to be sufficiently clear in

order to enable submission of commensurate and mutually comparable tenders The invitation

to tender or the contract notice shall invite suppliers to submit their tenders in writing by the

deadline

In case of a discrepancy between the invitation to tender and the contract notice the contract

notice shall apply

The contracting authorityentity may charge a reasonable fee for the invitation-to-tender doc-

uments to recover the costs arising from the exceptionally extensive scope of the documenta-tion the materials related thereto or other similar factors

3

15) Crisis means any situation in Finland or in another country in which a harmful event has

occurred which clearly exceeds the dimensions of harmful events in everyday life and which

substantially endangers or restricts the life and health of people or has a substantial impact

on property values or the measures to supply the population with necessities have been sub-

stantially endangered or restrictred a crisis shall also be deemed to have arisen if the occur-

rence of such a harmful event is deemed to be impending armed conflicts and wars are con-

sidered to constitute a crisis for the purposes of this Act

16) Research and development means all activities consisting of basic and applied research

and experimental development the latter may include the equipment used to introduce the

new concept or technology in an appropriate or typical setting

17) Technical specification means the definition of the characteristics required of a product

service or materials that are the object of the procurement these characteristics shall include inter alia requirements for v

levels of quality or environmental protection design conformity and applicability assessment

of the use of the product product safety and measurements the name under which the prod-

uct is sold terminology symbols testing and test methods package markings labelling user

instructions production processes and methods and conformity assessment in the case of

public works contracts technical specifications also include rules related to design cost ac-

counting testing and inspection acceptance conditions construction methods and techniques and other technical requirements related to finished works and materials or parts thereof

18) Standard means a technical specification which has been published as a standard ap-

proved by a recognised standardising body for repeated or continued application compliance with which is not compulsory and which falls in one of the following categories

a) International in which case the standard is adopted by an international standards organisa-tion and is available to the general public

a) European in which case the standard is adopted by a European standards organisation and is available to the general public or

a) National in which case the standard is adopted by a national standards organisation and is

available to the general public

d) Defence industry-related in which case the standard is approved by an international re-

gional or national standardising body specialised in drawing up technical specifications for re-

peated and continuous use in the defence industry and compliance with the standard is not compulsory

19) European technical approval means a favourable technical assessment issued by an ap-

proval body appointed by a European Union member state stating that the building works

product in question is suitable for a particular purpose approval is based on the fulfilment of

the essential requirements for building works based on which the inherent characteristics of the product are specified and the defined conditions in which the product is used

20) Official technical specification is a technical specification which has been approved by Eu-

ropean Union member states and published in the Official Journal of the European Union

21) Technical reference means any technical specification ndash other than the official standard ndash

drawn up by a European standardisation body according to procedures adopted for the devel-opment of market needs

22) Recognised body means test and calibration laboratories and inspection and certification

bodies which comply with applicable European standards the contracting authorityentity shall

also accept certificates from recognised bodies in other European Union member states

23) Life cycle means any and all subsequent stages the product goes through ie research

and development industrial development production repair modernisation modification

maintenance logistics and the organisation of logistics storage transport training testing

removal and destruction

24) Common procurement vocabulary (CPV)) means the reference nomenclature laid down by

Regulation (EC) No 21952002 of the European Parliament and of the Council on the common procurement vocabulary

4

25) The expression written or in writing means a combination of words or figures which can be

read reproduced and subsequently communicated it may include information which is trans-mitted and stored by electronic means

26) The expression electronic format means a form of communication which uses electrotech-

nical equipment for the processing and storage of data which is transmitted conveyed and

received by wire radio or optical or other electromagnetic means

Chapter 2

Scope of application

Section 4

Contracting entities

For the purposes of this Act contracting entities shall mean

1) State and municipal authorities and joint municipal authorities

2) State enterprises in accordance with the State Enterprise Act (11852002)

3) Bodies governed by public law meaning legal persons established for the specific purpose

of meeting needs in the general interest and not having an industrial or commercial character

and

a) financed for the most part by the contracting authorityentity referred to in point 1ndash3

b) whose management is subject to supervision by the contracting authorityentity referred to

in point 1ndash3 or

c) having an administrative managerial or supervisory board more than half of whose mem-bers are appointed by the contracting authorityentity referred to in point 1ndash3

4) contracting entities 1 in accordance with Section 5 of the Act on Public Procurement by Enti-

ties in the Water Energy Transport and Postal Services Sector (3492007) hereafter referred to as the Act on Public Contracts in Special Sectors

Section 5

Procurement in the fields of defence and security

Unless otherwise prescribed in articles 36 51 52 or 62 of the Treaty on the Functioning of the

European Union hereafter TFEU this Act shall apply to defence and security related procure-

ment by contracting entities referred to in Section 4

Procurement in the field of defence means

1) Defence equipment or parts or components thereof

2) Public works products or services directly related to a phase in the life cycle of products

referred to in point 1

3) Public works or services used specifically for military purposes

Procurement in the field of security means

1) Products which are meant to be used for security purposes and for the procurement of

which classified documents are submitted drawn up or otherwise dealth with and parts com-

ponents thereof

2) Public works products or services directly related to a phase in the life cycle of products

referred to in point 1

5

3) Public works or services meant to be used for security purposes and for the procurement of

which classified documents are submitted drawn up or otherwise dealth with

Defence equipment refers to products which are specifically designed or adjusted for military

purposes and meant to be used as a weapon ammunition or defence materiel

Section 6

Public contracts applicable to several functions and the application of the Act on pub-

lic contracts

If the procurement of works products or services is included in part within the scope of appli-

cation of this Act and in part within the scope of the Act on Public Contracts (3482007)

hereafter referred to as the Public Procurement Act or within the scope of application of the

Act on public contracts in special sectors it shall be conducted in accordance with this Act

provided that objective reasons justify the execution of one single contract

If the procurement of works products or services is included only in part within the scope of

application of this Act while at the same time being excluded from the scope of application of

the Public Procurement Act or the Act on Public Contracts in Special Sectors and the procure-

ment can be carried out on the basis of one contract only the provisions of this Act shall not

apply with the exception of a procurement rectification laid down in Section 85 of this Act and

the prohibition to appeal laid down in Section 104(2)

The procurement shall not be carried out as one contract for the purpose of avoiding the appli-

cation of the provisions of this Act the Procurement Act or the Act on public contracts in spe-cial sectors

The contracting authorityentity may decide to apply the provisions of the Public Procurement

Act in the procurement of a product service or work instead of this Act The Public Procure-

ment Act will then be applied in its entirety while Section 77(3) shall be applied to the notifica-tion of the decision made by the contracting authorityentity

Section 7

General exclusions from the scope of application of this Act

With the exception of a procurement rectification laid down in Section 85 and a prohibition to

appeal laid down in Section 104(2) this act shall not apply to

1) Defence and security procurement when declared secret or when the application of this Act

would oblige the contracting authorityentity to disclose information the publishing of which is

against the essential security interests of the state

2) Defence and security procurement between authorities

3) Defence and security procurement to which the following points apply

a) special procedural provisions between Finland and at least one state outside

the European Economic Area on the basis of an international treaty or ar-

rangement

b) special procedural provisions based on an international treaty or arrange-

ment related to the placement of troops

c) special procedural provisions of an international organisation when such or-

ganisation conducts procurement for its own purposes or

d) special procedural provisions of an international organisation when the con-

tracting authorityentity is obliged to carry out the procurement in accord-

ance with such provisions

6

4) Defence and security procurement related to a joint new product research and development

project between at least two European Economic Area member states and not to procure-

ment which has been executed during the later stages in the life cycle of this product or

5) Procurement executed in connection with sending troops to areas outside the European

Economic Area and carried out when the procurement ndash for operational requirements ndash must

be conducted with a supplier operating in that area

This act shall also not apply to

1) Defence and security procurement carried out by the contracting authorityentity referred to

in Section 4(1)(4) and when the value of the contract does not exceed the EU threshold val-

ues in accordance with Section 12 and

2) defence and security procurement carried out to perform a function in terms of which it has

been confirmed by a decision of the European Commission ndash in accordance with Section 11 of

the Act on public contracts in special sectors ndash that the function is open to direct competition in markets that have no restrictions on entry

If all of the participants in the research and development project referred to in subsection 1

point 4 above are member states of the European Union the European Commission must be

informed of such a search and development project The notice must be issued when the re-

search and development project is started and must include information on the cost-sharing

agreement between the parties the share of research and development expenditure relative to

the total costs of the project and in the event that the planned procurement involves member states their shares

Section 8

Specific exclusions from the scope of application of this Act

With the exception of a procurement rectification laid down in Section 85 and a prohibition to

appeal laid down in Section 104(2) this Act shall not apply to defence and security procure-ment related to intelligence activities

Similarly with the exception of a procurement rectification laid down in Section 85 and a pro-

hibition to appeal laid down in Section 104(2) this Act shall also not apply to defence and se-curity procurement concerning

1) the acquisition or rental ndash by whatever form of financing ndash of land existing buildings or oth-er immovable property or services related to the rights concerning them

2) arbitration and conciliation services

3) financial services with the exception of insurance services

4) employment contracts

5) research and development services other than those where the benefits accrue exclusively

to the contracting authorityentity for use in the conduct of its own affairs on condition that the service provided is wholly remunerated by the contracting authorityentity

Section 9

Procurement from in-house companies

This Act shall not apply to defence and security procurement from a body formally separate

and ndash in terms of decision making ndash independent of the contracting authorityentity carrying

out the procurement provided that the contracting authorityentity ndash by itself or in coopera-

tion with other contracting entities ndash oversees the body in question in the same way it over-

sees its own places of operation and the body conducts the majority of its operations with

those contracting entities under whose control it operates

7

Section 10

Procurement from or through a central purchasing body

Contracting entities which purchase products services or works that fall within the scope of

application of this Act from or through a central purchasing body shall be deemed to have complied with this Act insofar as the central purchasing body has complied with it

A central purchasing body is a contracting authorityentity or a European public body which

acquires supplies or services for the contracting entities or executes ndash on their behalf ndash public contracts or framework agreements on supplies services or works

Section 11

Reserving procurement for sheltered workshops

A contracting authorityentity may limit participation in competitive bidding to sheltered work-

shops or similar bodies or provide for such contracts to be carried out in the context of shel-

tered employment programmes where most of the employees concerned are people with disa-

bilities who by reason of the nature or seriousness of their disabilities cannot carry on occu-

pational activity under normal conditions The public contract notice must indicate that the

contract is reserved for sheltered workshops or shall be carried out in the context of sheltered

employment programmes

Chapter 3

Thresholds and implementation provisions with regard to types of procurement

Section 12

EU thresholds

With regard to thresholds applicable to the award of contracts EU thresholds which are based

on Commission Regulation (EC) 12512011 amending Directives 200417EC 200418EC and 200981EC of the European Parliament and of the Council shall be

1) EUR 400000 for public supply and service contracts and

2) EUR 5000000 for public works contracts

The European Commission shall revise the threshold values by means of a regulation every

two years in accordance with the procedure laid down in Article 68 of the Directive on Defence

and Security procurement and publish the revised thresholds in the Official Journal of the Eu-

ropean Union following the publication the thresholds laid down in subsection 1 shall be re-

placed by the new thresholds as revised by the European Commission The Ministry of Eco-

nomic Affairs and Employment must communicate without delay any changes to the EU

thresholds in the Official Journal in accordance with the revisions made by the Commission

Section 13

National thresholds

With the exception of a procurement rectification laid down in Section 85 and a prohibition to

appeal laid down in Section 104(2) this Act shall not apply to the following defence and securi-ty contracts

1) procurement of products and services whose estimated value excluding value added tax is less than EUR 100000

2) public works whose predetermined value excluding value added tax is less than EUR 500000

8

Section 14

Provisions applicable to the procurement of products and services and public works

contracts

The provisions of this Act with the exception of the provisions laid down in Title III shall apply

to the procurement of products and works referred to in Section 12(1) above exceeding the

EU threshold and to the procurement of the services listed in Annex A The provisions of this

Act are similarly applicable to the procurement of the services referred to in Annex A along

with the services referred to in Annex B provided that the value of the services referred to in

Annex A exceeds the value of the services referred to in Annex B and the total value of the contract exceeds the EU threshold

The provisions of Title II shall apply to the procurement of products and works and the ser-

vices listed in Annex A which are below the EU threshold referred to in Section 12(1) above but exceed the national threshold referred to in Section 13

The provisions of Title II shall not apply to the procurement the services listed in Annex B

However the provisions of Section 28 concerning the contract award notice obligation and di-

rect award of contract notification the provisions of Sections 37ndash38 concerning technical speci-

fications and technical specifications of environmental characteristics and the provisions of

Section 44 concerning proof provided by the tenderer shall apply to the procurement of the services listed in Annex B exceeding the EU threshold referred to in Section 12(1) above

Section 15

Provisions applicable to certain other contracts

The provisions of Title II shall not apply to contracts which fulfil the requirements of Article 346

(1)(b) of TFEU and whose value exceeds the national threshold laid down in Section 13

If the procurement of works products or services is included within the scope of application of

this Act but only a part of the procurement fulfils the requirements set in Article 346 (1)(b) of

TFEU and the procurement can be carried out on the basis of one contract only the provisions

of Title II shall not appply

Chapter 4

Calculation of the estimated value of a contract

Section 16

Calculation of the estimated value of a contract

The criterion for the calculation of the estimated value of a contract shall be the maximum to-

tal compensation excluding value added tax Calculation of the estimated value shall take ac-

count of any alternative methods of execution of the contract and option or extension clauses included in the contract

With regard to public works contracts calculation of the estimated value shall take account of

both the cost of the work and the total estimated value of the supplies necessary to execute the work and placed at the contractors disposal by the contracting authorityentity

Where the contract is being awarded at the same time in separate lots account shall be taken

of the total estimated value of all such lots when calculating the estimated value of the con-

tract Where the aggregate value of the lots exceeds the EU threshold laid down in Section 12

or the national threshold laid down in Section 13 the provisions of chapter 3 shall apply to the awarding of each lot separately

The provisions of this Act 10 shall not apply to lots whose estimated value is less than EUR

80000 for service and supply contracts and EUR 1 million for works provided that the aggre-

9

gate value of those lots does not exceed 20 of the aggregate value of the lots as a whole If

the estimated value of a work exceeds the national threshold laid down in Section 13 the con-tracting authorityentity shall act in line with the provisions laid down in Section 14(2)

The estimated value shall be the value at the time when the contracting authorityentity pub-lishes the procurement notice or otherwise commences the procurement procedure

Section 17

Calculating the estimated value of certain public service contracts

The value taken as a basis for calculating the estimated contract value shall be as follows

1) for insurance services the premiums payable and other forms of remuneration

2) for design contracts fees and commissions payable and other forms of remuneration

Section 18

Calculation of estimated value for the contract period

With regard to public supply contracts related to leasing hire rental or hire purchase of prod-

ucts the value to be taken as a basis for calculating the estimated contract value shall be as follows

1) in the case of fixed-term public contracts if that term is less than or equal to 12 months

the total estimated value for the term of the contract or if the term of the contract is greater

than 12 months the total value including the estimated residual value or

2) in the case of public contracts without a fixed term or the term of which cannot be defined the estimated monthly value multiplied by 48

In the case of public supply or service contracts which are regular in nature or which are in-

tended to be renewed within a given period the calculation of the estimated contract value shall be based on the following

1) either the total actual value of the successive contracts of the same type awarded during

the preceding 12 months or financial year adjusted to take account of the changes in quantity or value which would occur in the course of the 12 months following the initial contract or

2) the total estimated value of the successive contracts awarded during the 12 months follow-ing the first delivery or during the financial year if that is longer than 12 months

For public service contracts which do not indicate a total price the value to be taken as a basis for calculating the estimated contract value shall be as follows

1) in the case of fixed-term public contracts if that term is less than or equal to 48 months

the total estimated value for the term of the contract or

2) in the case of public contracts without a fixed term or if the term of the contract is greater than 48 months the estimated monthly value multiplied by 48

With regard to framework agreements the value to be taken into consideration in calculating

the estimated value of the contract shall be the total estimated value of all the contracts en-visaged for the term of the framework agreement

Section 19

Prohibition on artificial subdivision or combination of contracts

No public contract may be divided into lots severed or calculated using unusual methods with

the intention of excluding it from the scope of this Act A public supply or service contract may

not be combined with a works contract nor may contracts be otherwise artificially combined to prevent them coming within the scope of this Act

10

PART II

Provisions on public supply contracts primary public service contracts as defined in

Annex A and public works contracts above the EU threshold

Chapter 5

Contract award procedures

Section 20

Choosing the contract award procedure

The competition procedures for public contracts are defined in Section 3 points 9ndash13 Restrict-

ed or negotiated procedures shall be primarily used in awarding contracts Direct award of con-

tracts the competitive dialogue procedure and framework agreements may be used under the conditions laid down in Sections 22ndash27

In the restricted procedure negotiated procedure and competitive dialogue procedure the

contracting authorityentity may limit in advance the number of candidates they will invite to

tender The contracting authorityentity shall indicate in the contract notice the minimum

number of candidates they intend to invite and where appropriate the maximum number The

contracting authorityentity shall apply the minimum requirements indicated in the contract

notice and objective and non-discriminatory criteria in selecting the candidates invited to ten-der

In order to ensure genuine competition the number of candidates to be invited must be suffi-

cient in relation to the size and subject matter of the contract In the restricted procedure

negotiated procedure and competitive dialogue procedure a minimum of three candidates

shall be invited to tender unless there are fewer than three suitable candidates

The minimum number of candidates to be invited to tender shall be the number of candidates

set in advance by the contracting authorityentity If there are fewer suitable candidates the

contracting authorityentity may continue the procedure by inviting suitable candidates to

submit a tender or to commence negotiations Only those candidates which meet the minimum

criteria and have submitted a request to participate may be invited to tender

If the contracting authorityentity is of the opinion that the number of candidates is not suffi-

cient to ensure a genuine competition it may publish the original contract notice again and set

a new time limit for submission of participation requests The candidates invited to tender shall

be selected from among the candidates who have come forward on the basis of the original

and the new contract notice Publication of a new contract notice does not restrict the possible

interruption of the contract award procedure by the contracting authorityentity as laid down in Section 75

Section 21

Conduct of the negotiated procedure

The contracting authorityentity shall negotiate with the tenderers in order to adapt the ten-

ders submitted by them to the requirements set in the contract notice or invitation to tender

The purpose of the negotiations shall be to select the best tender in accordance with Section 57

The negotiations may take place in successive stages in order to reduce the number of tenders

to be discussed during the negotiations by applying the award criteria provided that the re-

course to a phased procedure and criteria applied during the negotiations are indicated in the

contract notice or invitation to tender

In order to ensure a genuine competition there must be a sufficient number of candidates provided that there is a sufficient number of tenderers and tenders that meet the criteria

The contracting authorityentity shall ensure equal treatment of all candidates and tenderers

during the negotiations and shall not provide information in a manner which may compromise the equal treatment of the participants in the competitive bidding

11

Section 22

Direct award of contracts

The contracting authorityentity may award public contracts by a direct award

1) when no tenders or suitable tenders or applications have been submitted in response to a

restricted procedure negotiated procedure or competitive dialogue procedure and the initial conditions of the contract are not substantially altered

2) when applications have been submitted in response to a restricted procedure negotiated

procedure or competitive dialogue procedure the contents of which do not correspond to the

requirements of the invitation to tender or if the tenders are not acceptable under Sections

39 41ndash43 46ndash56 60 and 62 an additional requirement shall be that the initial conditions of

the invitation to tender are not substantially altered and all tenderers which fulfil the minimum

requirements under Sections 46ndash54 and which have during the preceding procedure submitted

a tender which fulfills the format requirements of the tendering procedure shall be included in

the direct award of contracts

3) when for technical reasons or for reasons connected with the protection of exclusive rights

the contract may be awarded only to a particular supplier

4) when for reasons of urgency brought about by a crisis the time limits for the restricted pro-

cedure or negotiated procedure and the time limits for the accelerated procedure laid down in Section 30 cannot be complied with

5) when execution of the contract is absolutely necessary and the prescribed time limits can-

not be complied with for reasons of extreme urgency brought about by events unforeseeable by and independent of the contracting authorityentity

6) when the matter involves air and maritime transport services to armed forces or security

forces transferred or to be transferred abroad and such services can only be procured from

suppliers whose tenders are valid only for such a short period of time that compliance with the

set time limits is not possible

7) when the products to be acquired are manufactured purely for scientific and research pur-

poses and it is not a matter of securing the commercial viability of the products through mass production or to recover research and development costs

8) when the case involves a research and development service that has not been excluded from the scope of this Act on the basis of Section 8

9) for supplies quoted and purchased on a commodity market

10) for the purchase of supplies on particularly advantageous terms from either a supplier

winding up its business activities or from the receivers of a bankruptcy or liquidators in insol-vency proceedings an arrangement with creditors or a similar procedure

Section 23

Direct award of contracts for additional supplies

The contracting authorityentity may award contracts directly for additional supplies by the

original supplier which are intended either as a partial replacement or an extension of the pre-

vious delivery or installation provided that a change of supplier would oblige the contracting

authorityentity to acquire material with different technical characteristics which would result

in incompatibility or disproportionate technical difficulties in operation and maintenance The

validity period of such contracts and that of recurrent contracts may not exceed a maximum of

five years except in exceptional cases where the expected life cycle of the supplies equipment

or systems and the technical problems resulting from the change of supplier require a longer period of validity

In addition to the provisions laid down in subsection 1 the contracting authorityentity may

award contracts directly for additional works or services not included in the original contract

but which are to be acquired from the original supplier and have through unforeseen circum-

stances become necessary for the performance of the works or services as originally de-

scribed However such additional works or services cannot be technically or economically sep-

12

arated from the original contract without major inconvenience to the contracting authori-

tiesentities or when such works or services although separable from the performance of the

original contract are strictly necessary for the completion of the original contract In addition

the aggregate value of contracts awarded for additional works or services may not exceed

50 of the amount of the original contract

In addition to the provisions laid down in subsections 1 and 2 the contracting authorityentity

may award a contract for new works or services directly to the original supplier provided that

such works and services are in conformity with the contract awarded earlier according to the

restricted procedure The aforementioned procedure may be used on condition that the con-

tract notice for the original works or services indicates the possible use of a later direct award

of contract and provided that the estimated value of additional services or new public works

shall be taken into consideration when calculating the aggregate value of the original contract

Direct award of contract may be used only during the five years following the conclusion of the

original contract excluding exceptional conditions where the expected life cycle of the sup-

plies equipment or systems and the technical problems resulting from the change of supplier require a longer period of validity

Section 24

Competitive dialogue procedure

The contracting authorityentity may use the competitive dialogue procedure in particularly complex contracts where

1) the contracting authorityentity is not objectively able to specify the legal or financial condi-

tions of the contract or the technical solutions capable of satisfying their needs or objectives in accordance with Section 37(2)(2ndash4) and

2) the criterion used is to award the contract to the economically most advantageous tender

The contracting authorityentity shall ensure equal treatment of all tenderers and shall not

provide information in a manner that may compromise the equal treatment of the participants in competitive bidding

The contracting authorityentity may not reveal to the other participants in competitive bid-

ding solutions proposed by another tenderer or confidential information communicated during the negotiations without the agreement of the candidate or tenderer

The contracting authorityentity may pay monetary or other rewards to the participants in the competitive dialogue

Section 25

Conduct of the competitive dialogue

The contracting authorityentity shall publish a contract notice setting out their needs and re-

quirements for the contract The contracting authorityentity may further define the objective and content of the contract in a project description document

The contracting authorityentity shall initiate with the candidates selected in accordance with

the provisions of Sections 46ndash54 a dialogue the aim of which is to define one or more solu-

tions to fulfil the contract The contracting authorityentity may discuss all aspects of the con-tract with the candidates during this dialogue

The dialogue may take place in successive stages in order to reduce the number of tenders to

be discussed during the dialogue by applying the comparison criteria indicated in the invitation

to tender The contract notice or the project description shall indicate the recourse to a phased procedure and the criteria applied

The contracting authorityentity shall conclude the dialogue when it can identify the solutions

capable of realising the contract The contracting authorityentity shall inform the participants of the conclusion of the dialogue

The contracting authorityentity shall request the candidates to submit their final tenders on

the basis of the solutions presented and specified during the dialogue The tender shall contain

13

all the elements required for the performance of the project in accordance with the invitation

to tender In order to ensure a genuine competition the contracting authorityentity shall re-

quest tenders from a sufficient number of candidates provided that there is a sufficient num-ber of candidates or solutions that meet the criteria

The tenders shall be assessed on the basis of the comparison criteria indicated in the contract

notice or the project description The contracting authorityentity shall set the comparison cri-teria and award the contract in accordance with the provisions laid down in Section 57

The final tenders may be clarified and specified at the request of the contracting authori-

tyentity However such clarification or specification may not involve changes to the essential

features of the tenders or the invitations to tender in a manner that would distort competition

or have a discriminatory effect On the same conditions the contracting authorityentity may

ask the tenderer to clarify or specify aspects of or confirm commitments contained in the winning tender

Section 26

Framework agreement

The contracting authorityentit shall choose the suppliers pursuant to the framework agree-

ment by restricted or negotiated procedures The contracting authorityentity may also choose

the suppliers to the framework agreement by awarding the contract directly pursuant to the

provisions of Section 22 The suppliers to the framework agreement shall be admitted by ap-

plying the award criteria set in accordance with Chapter 8 Where a framework agreement is

concluded with several suppliers a minimum of three suppliers shall be selected unless there

are fewer suitable suppliers and admissible tenders that meet the award criteria

Contracts based on framework agreements shall be concluded with the original parties to the

agreement During the term of the agreement the parties may not make substantial amend-

ments to the terms laid down in the framework agreement The framework agreement may not be used in such a way as to distort restrict or prevent competition

The term of the framework agreement may not exceed seven years In exceptional cases the

framework agreement may be longer in duration when justified by the subject of the frame-

work agreement and taking into account the expected life cycle of the supplies equipment

and systems delivered and the technical problems that may result from the change of suppli-er

Section 27

Contracts based on a framework agreement

If the contracting authorityentity has concluded a framework agreement with a single suppli-

er contracts based on that agreement shall be awarded in accordance with the terms laid

down in the framework agreement The contracting authorityentity may ask the supplier to specify or supplement the tender in writing as needed

If the contracting authorityentity has concluded a framework agreement with several suppli-

ers contracts based on those agreements shall be awarded either by application of the terms

laid down in the framework agreement without reopening competition or where not all of the

terms are laid down in the framework agreement inviting the parties to the framework

agreement to tender in accordance with the terms of the framework agreement and where

appropriate with the terms of the call for tenders Where necessary the terms of the frame-

work agreement may be clarified or further defined

The contracting authorityentity carrying out a mini-competition to call off contracts under a

framework agreement shall ask the parties to the framework agreement capable of performing

the contract to submit a tender in writing The contracting authorityentity shall fix a time limit

which is sufficiently long to allow tenders to be submitted taking into account the subject mat-

ter of the contract the time needed to submit tenders and other similar factors The content of

the tenders shall remain confidential until the stipulated time limit of the mini-competition has

14

expired The contracting authorityentity shall choose the best tender in accordance with the

award criterion and comparison criteria indicated in the invitation to tender

Chapter 6

Mandatory publication of public contracts and time limits

Section 28

Publication requirement

When the procurement is carried out with the restricted procedure negotiated procedure or

competitive dialogue the contracting authorityentity shall provide for publication an infor-

mation notice concerning the procurement of the supplies when exceeding the EU threshold as

laid down in Section 12(1) above and the procurement of a service work and framework

agreement listed in Annex A The information notice shall include sufficient information to make a request to participate

The contracting authorityentity that has procured supplies exceeding the EU threshold as laid

down in Section 12(1) above or a service work or framework agreement listed in Annex A

shall provide a contract award notice for publication concerning the results of the award proce-

dure within 48 hours from concluding a public contract or framework agreement In addition

the contracting authorityentity shall provide a contract award notice for publication concerning

secondary service contracts which exceed the EU threshold as laid down in Section 12(1)

listed in Annex B and the suspension of the award procedure as laid down in Section 75 The

contract award notice concerning the suspension of the award procedure shall provide the rea-

sons for suspension The contract award notice concerning secondary service contracts as

listed in Annex B shall indicate whether the notice can be published The obligation to provide

a contract award notice for publication does not concern separate public contracts or direct award of contracts concluded within a framework agreement

The contracting authorityentity shall not provide information in the contract award notice the

publication of which is against the provisions laid down to protect the public interest or in par-

ticular the security of the state In addition the contracting authorityentity shall not provide

information which could endanger legally protected business secrets or harm commercial and healthy competition among tenderers

If the contracting authorityentity intends to benefit from the possibility to shorten regulated

bidding windows as laid down in Section 31(2) it shall provide a prior information notice for

publication The prior information notice shall provide the information available at the time the

notice is given on defence and security procurement that complies with the information in con-tract notice in the restricted procedure

In addition the contracting authorityentity may provide for publication a contract notice con-cerning a direct contract

More specific rules concerning the requirements for publication the means of communication

which may be used in sending the notices to be published their content publication and other

aspects of the requirement for publication shall be laid down in a Government decree

Section 29

Minimum time limits and fixing the time limits

When fixing time limits for tendering procedures the contracting authorityentity shall take

account of the quality and complexity of the procurement and the time required for drawing up

and submitting tenders Time limits shall be calculated from the date following the date on

which the contract notice is sent to be published In the case of a restricted procedure the

deadline fixed for the receipt of tenders shall be calculated from the date on which the invita-tion to tender was sent

In the case of a restricted procedure negotiated procedure and competitive dialogue the min-imum time limit for the submission of tenders shall be 37 days

15

In the case of a restricted procedure the minimum time limit for the receipt of tenders shall be

at least 40 days In the case of a negotiated procedure and competitive dialogue the deadline

fixed for the receipt of tenders shall be reasonable taking into account the subject matter and extent of the contract as well as other matters related thereto

Section 30

Accelerated procedure

In the case of restricted procedures and negotiated procedures the time limits laid down in

Section 29 above may be shortened if urgency renders them impracticable However the time

limit for the receipt of requests to participate shall be no less than 15 days or no less than 10

days if the notice is sent by electronic means In the case of the restricted procedure the min-imum time limit for the receipt of tenders shall be 10 days

Section 31

Reducing the time limits

The time limit set for the submission of participation requests can be restricted in the restrict-

ed procedure negotiated procedure and competitive dialogue by seven days if the contract

notices are sent for publication by electronic means

In restricted procedures the time limit for the receipt of tenders may be reduced to no less

than 22 days if the contracting authorityentity has sent the prior information notice for publi-

cation a minimum of 52 days and a maximum of 12 months before the date on which the con-tract notice was sent for publication

The time limit for the receipt of tenders may be reduced by an additional five days in the re-

stricted procedure provided that the contracting authorityentity offers full access to the con-

tract documents by electronic means from the date of publication of the notice specifying in the text of the notice the internet address where these documents are accessible

Section 32

Lengthening the time limits

The time limit for the receipt of tenders should be lengthened so that the bidders can familiar-

ise themselves with the information needed for drawing up the bids if the invitation to tender

documents or additional information that was requested in time have not been delivered within

the prescribed time limits or if submitting the bid requires an on-site visit or an on-site exam-ination of the documents related to the invitation to tender

Chapter 7

Invitation to tender and defining the object of the contract

Section 33

Invitation to tender

The invitation to tender shall be submitted in writing and drawn up to be sufficiently clear in

order to enable submission of commensurate and mutually comparable tenders The invitation

to tender or the contract notice shall invite suppliers to submit their tenders in writing by the

deadline

In case of a discrepancy between the invitation to tender and the contract notice the contract

notice shall apply

The contracting authorityentity may charge a reasonable fee for the invitation-to-tender doc-

uments to recover the costs arising from the exceptionally extensive scope of the documenta-tion the materials related thereto or other similar factors

4

25) The expression written or in writing means a combination of words or figures which can be

read reproduced and subsequently communicated it may include information which is trans-mitted and stored by electronic means

26) The expression electronic format means a form of communication which uses electrotech-

nical equipment for the processing and storage of data which is transmitted conveyed and

received by wire radio or optical or other electromagnetic means

Chapter 2

Scope of application

Section 4

Contracting entities

For the purposes of this Act contracting entities shall mean

1) State and municipal authorities and joint municipal authorities

2) State enterprises in accordance with the State Enterprise Act (11852002)

3) Bodies governed by public law meaning legal persons established for the specific purpose

of meeting needs in the general interest and not having an industrial or commercial character

and

a) financed for the most part by the contracting authorityentity referred to in point 1ndash3

b) whose management is subject to supervision by the contracting authorityentity referred to

in point 1ndash3 or

c) having an administrative managerial or supervisory board more than half of whose mem-bers are appointed by the contracting authorityentity referred to in point 1ndash3

4) contracting entities 1 in accordance with Section 5 of the Act on Public Procurement by Enti-

ties in the Water Energy Transport and Postal Services Sector (3492007) hereafter referred to as the Act on Public Contracts in Special Sectors

Section 5

Procurement in the fields of defence and security

Unless otherwise prescribed in articles 36 51 52 or 62 of the Treaty on the Functioning of the

European Union hereafter TFEU this Act shall apply to defence and security related procure-

ment by contracting entities referred to in Section 4

Procurement in the field of defence means

1) Defence equipment or parts or components thereof

2) Public works products or services directly related to a phase in the life cycle of products

referred to in point 1

3) Public works or services used specifically for military purposes

Procurement in the field of security means

1) Products which are meant to be used for security purposes and for the procurement of

which classified documents are submitted drawn up or otherwise dealth with and parts com-

ponents thereof

2) Public works products or services directly related to a phase in the life cycle of products

referred to in point 1

5

3) Public works or services meant to be used for security purposes and for the procurement of

which classified documents are submitted drawn up or otherwise dealth with

Defence equipment refers to products which are specifically designed or adjusted for military

purposes and meant to be used as a weapon ammunition or defence materiel

Section 6

Public contracts applicable to several functions and the application of the Act on pub-

lic contracts

If the procurement of works products or services is included in part within the scope of appli-

cation of this Act and in part within the scope of the Act on Public Contracts (3482007)

hereafter referred to as the Public Procurement Act or within the scope of application of the

Act on public contracts in special sectors it shall be conducted in accordance with this Act

provided that objective reasons justify the execution of one single contract

If the procurement of works products or services is included only in part within the scope of

application of this Act while at the same time being excluded from the scope of application of

the Public Procurement Act or the Act on Public Contracts in Special Sectors and the procure-

ment can be carried out on the basis of one contract only the provisions of this Act shall not

apply with the exception of a procurement rectification laid down in Section 85 of this Act and

the prohibition to appeal laid down in Section 104(2)

The procurement shall not be carried out as one contract for the purpose of avoiding the appli-

cation of the provisions of this Act the Procurement Act or the Act on public contracts in spe-cial sectors

The contracting authorityentity may decide to apply the provisions of the Public Procurement

Act in the procurement of a product service or work instead of this Act The Public Procure-

ment Act will then be applied in its entirety while Section 77(3) shall be applied to the notifica-tion of the decision made by the contracting authorityentity

Section 7

General exclusions from the scope of application of this Act

With the exception of a procurement rectification laid down in Section 85 and a prohibition to

appeal laid down in Section 104(2) this act shall not apply to

1) Defence and security procurement when declared secret or when the application of this Act

would oblige the contracting authorityentity to disclose information the publishing of which is

against the essential security interests of the state

2) Defence and security procurement between authorities

3) Defence and security procurement to which the following points apply

a) special procedural provisions between Finland and at least one state outside

the European Economic Area on the basis of an international treaty or ar-

rangement

b) special procedural provisions based on an international treaty or arrange-

ment related to the placement of troops

c) special procedural provisions of an international organisation when such or-

ganisation conducts procurement for its own purposes or

d) special procedural provisions of an international organisation when the con-

tracting authorityentity is obliged to carry out the procurement in accord-

ance with such provisions

6

4) Defence and security procurement related to a joint new product research and development

project between at least two European Economic Area member states and not to procure-

ment which has been executed during the later stages in the life cycle of this product or

5) Procurement executed in connection with sending troops to areas outside the European

Economic Area and carried out when the procurement ndash for operational requirements ndash must

be conducted with a supplier operating in that area

This act shall also not apply to

1) Defence and security procurement carried out by the contracting authorityentity referred to

in Section 4(1)(4) and when the value of the contract does not exceed the EU threshold val-

ues in accordance with Section 12 and

2) defence and security procurement carried out to perform a function in terms of which it has

been confirmed by a decision of the European Commission ndash in accordance with Section 11 of

the Act on public contracts in special sectors ndash that the function is open to direct competition in markets that have no restrictions on entry

If all of the participants in the research and development project referred to in subsection 1

point 4 above are member states of the European Union the European Commission must be

informed of such a search and development project The notice must be issued when the re-

search and development project is started and must include information on the cost-sharing

agreement between the parties the share of research and development expenditure relative to

the total costs of the project and in the event that the planned procurement involves member states their shares

Section 8

Specific exclusions from the scope of application of this Act

With the exception of a procurement rectification laid down in Section 85 and a prohibition to

appeal laid down in Section 104(2) this Act shall not apply to defence and security procure-ment related to intelligence activities

Similarly with the exception of a procurement rectification laid down in Section 85 and a pro-

hibition to appeal laid down in Section 104(2) this Act shall also not apply to defence and se-curity procurement concerning

1) the acquisition or rental ndash by whatever form of financing ndash of land existing buildings or oth-er immovable property or services related to the rights concerning them

2) arbitration and conciliation services

3) financial services with the exception of insurance services

4) employment contracts

5) research and development services other than those where the benefits accrue exclusively

to the contracting authorityentity for use in the conduct of its own affairs on condition that the service provided is wholly remunerated by the contracting authorityentity

Section 9

Procurement from in-house companies

This Act shall not apply to defence and security procurement from a body formally separate

and ndash in terms of decision making ndash independent of the contracting authorityentity carrying

out the procurement provided that the contracting authorityentity ndash by itself or in coopera-

tion with other contracting entities ndash oversees the body in question in the same way it over-

sees its own places of operation and the body conducts the majority of its operations with

those contracting entities under whose control it operates

7

Section 10

Procurement from or through a central purchasing body

Contracting entities which purchase products services or works that fall within the scope of

application of this Act from or through a central purchasing body shall be deemed to have complied with this Act insofar as the central purchasing body has complied with it

A central purchasing body is a contracting authorityentity or a European public body which

acquires supplies or services for the contracting entities or executes ndash on their behalf ndash public contracts or framework agreements on supplies services or works

Section 11

Reserving procurement for sheltered workshops

A contracting authorityentity may limit participation in competitive bidding to sheltered work-

shops or similar bodies or provide for such contracts to be carried out in the context of shel-

tered employment programmes where most of the employees concerned are people with disa-

bilities who by reason of the nature or seriousness of their disabilities cannot carry on occu-

pational activity under normal conditions The public contract notice must indicate that the

contract is reserved for sheltered workshops or shall be carried out in the context of sheltered

employment programmes

Chapter 3

Thresholds and implementation provisions with regard to types of procurement

Section 12

EU thresholds

With regard to thresholds applicable to the award of contracts EU thresholds which are based

on Commission Regulation (EC) 12512011 amending Directives 200417EC 200418EC and 200981EC of the European Parliament and of the Council shall be

1) EUR 400000 for public supply and service contracts and

2) EUR 5000000 for public works contracts

The European Commission shall revise the threshold values by means of a regulation every

two years in accordance with the procedure laid down in Article 68 of the Directive on Defence

and Security procurement and publish the revised thresholds in the Official Journal of the Eu-

ropean Union following the publication the thresholds laid down in subsection 1 shall be re-

placed by the new thresholds as revised by the European Commission The Ministry of Eco-

nomic Affairs and Employment must communicate without delay any changes to the EU

thresholds in the Official Journal in accordance with the revisions made by the Commission

Section 13

National thresholds

With the exception of a procurement rectification laid down in Section 85 and a prohibition to

appeal laid down in Section 104(2) this Act shall not apply to the following defence and securi-ty contracts

1) procurement of products and services whose estimated value excluding value added tax is less than EUR 100000

2) public works whose predetermined value excluding value added tax is less than EUR 500000

8

Section 14

Provisions applicable to the procurement of products and services and public works

contracts

The provisions of this Act with the exception of the provisions laid down in Title III shall apply

to the procurement of products and works referred to in Section 12(1) above exceeding the

EU threshold and to the procurement of the services listed in Annex A The provisions of this

Act are similarly applicable to the procurement of the services referred to in Annex A along

with the services referred to in Annex B provided that the value of the services referred to in

Annex A exceeds the value of the services referred to in Annex B and the total value of the contract exceeds the EU threshold

The provisions of Title II shall apply to the procurement of products and works and the ser-

vices listed in Annex A which are below the EU threshold referred to in Section 12(1) above but exceed the national threshold referred to in Section 13

The provisions of Title II shall not apply to the procurement the services listed in Annex B

However the provisions of Section 28 concerning the contract award notice obligation and di-

rect award of contract notification the provisions of Sections 37ndash38 concerning technical speci-

fications and technical specifications of environmental characteristics and the provisions of

Section 44 concerning proof provided by the tenderer shall apply to the procurement of the services listed in Annex B exceeding the EU threshold referred to in Section 12(1) above

Section 15

Provisions applicable to certain other contracts

The provisions of Title II shall not apply to contracts which fulfil the requirements of Article 346

(1)(b) of TFEU and whose value exceeds the national threshold laid down in Section 13

If the procurement of works products or services is included within the scope of application of

this Act but only a part of the procurement fulfils the requirements set in Article 346 (1)(b) of

TFEU and the procurement can be carried out on the basis of one contract only the provisions

of Title II shall not appply

Chapter 4

Calculation of the estimated value of a contract

Section 16

Calculation of the estimated value of a contract

The criterion for the calculation of the estimated value of a contract shall be the maximum to-

tal compensation excluding value added tax Calculation of the estimated value shall take ac-

count of any alternative methods of execution of the contract and option or extension clauses included in the contract

With regard to public works contracts calculation of the estimated value shall take account of

both the cost of the work and the total estimated value of the supplies necessary to execute the work and placed at the contractors disposal by the contracting authorityentity

Where the contract is being awarded at the same time in separate lots account shall be taken

of the total estimated value of all such lots when calculating the estimated value of the con-

tract Where the aggregate value of the lots exceeds the EU threshold laid down in Section 12

or the national threshold laid down in Section 13 the provisions of chapter 3 shall apply to the awarding of each lot separately

The provisions of this Act 10 shall not apply to lots whose estimated value is less than EUR

80000 for service and supply contracts and EUR 1 million for works provided that the aggre-

9

gate value of those lots does not exceed 20 of the aggregate value of the lots as a whole If

the estimated value of a work exceeds the national threshold laid down in Section 13 the con-tracting authorityentity shall act in line with the provisions laid down in Section 14(2)

The estimated value shall be the value at the time when the contracting authorityentity pub-lishes the procurement notice or otherwise commences the procurement procedure

Section 17

Calculating the estimated value of certain public service contracts

The value taken as a basis for calculating the estimated contract value shall be as follows

1) for insurance services the premiums payable and other forms of remuneration

2) for design contracts fees and commissions payable and other forms of remuneration

Section 18

Calculation of estimated value for the contract period

With regard to public supply contracts related to leasing hire rental or hire purchase of prod-

ucts the value to be taken as a basis for calculating the estimated contract value shall be as follows

1) in the case of fixed-term public contracts if that term is less than or equal to 12 months

the total estimated value for the term of the contract or if the term of the contract is greater

than 12 months the total value including the estimated residual value or

2) in the case of public contracts without a fixed term or the term of which cannot be defined the estimated monthly value multiplied by 48

In the case of public supply or service contracts which are regular in nature or which are in-

tended to be renewed within a given period the calculation of the estimated contract value shall be based on the following

1) either the total actual value of the successive contracts of the same type awarded during

the preceding 12 months or financial year adjusted to take account of the changes in quantity or value which would occur in the course of the 12 months following the initial contract or

2) the total estimated value of the successive contracts awarded during the 12 months follow-ing the first delivery or during the financial year if that is longer than 12 months

For public service contracts which do not indicate a total price the value to be taken as a basis for calculating the estimated contract value shall be as follows

1) in the case of fixed-term public contracts if that term is less than or equal to 48 months

the total estimated value for the term of the contract or

2) in the case of public contracts without a fixed term or if the term of the contract is greater than 48 months the estimated monthly value multiplied by 48

With regard to framework agreements the value to be taken into consideration in calculating

the estimated value of the contract shall be the total estimated value of all the contracts en-visaged for the term of the framework agreement

Section 19

Prohibition on artificial subdivision or combination of contracts

No public contract may be divided into lots severed or calculated using unusual methods with

the intention of excluding it from the scope of this Act A public supply or service contract may

not be combined with a works contract nor may contracts be otherwise artificially combined to prevent them coming within the scope of this Act

10

PART II

Provisions on public supply contracts primary public service contracts as defined in

Annex A and public works contracts above the EU threshold

Chapter 5

Contract award procedures

Section 20

Choosing the contract award procedure

The competition procedures for public contracts are defined in Section 3 points 9ndash13 Restrict-

ed or negotiated procedures shall be primarily used in awarding contracts Direct award of con-

tracts the competitive dialogue procedure and framework agreements may be used under the conditions laid down in Sections 22ndash27

In the restricted procedure negotiated procedure and competitive dialogue procedure the

contracting authorityentity may limit in advance the number of candidates they will invite to

tender The contracting authorityentity shall indicate in the contract notice the minimum

number of candidates they intend to invite and where appropriate the maximum number The

contracting authorityentity shall apply the minimum requirements indicated in the contract

notice and objective and non-discriminatory criteria in selecting the candidates invited to ten-der

In order to ensure genuine competition the number of candidates to be invited must be suffi-

cient in relation to the size and subject matter of the contract In the restricted procedure

negotiated procedure and competitive dialogue procedure a minimum of three candidates

shall be invited to tender unless there are fewer than three suitable candidates

The minimum number of candidates to be invited to tender shall be the number of candidates

set in advance by the contracting authorityentity If there are fewer suitable candidates the

contracting authorityentity may continue the procedure by inviting suitable candidates to

submit a tender or to commence negotiations Only those candidates which meet the minimum

criteria and have submitted a request to participate may be invited to tender

If the contracting authorityentity is of the opinion that the number of candidates is not suffi-

cient to ensure a genuine competition it may publish the original contract notice again and set

a new time limit for submission of participation requests The candidates invited to tender shall

be selected from among the candidates who have come forward on the basis of the original

and the new contract notice Publication of a new contract notice does not restrict the possible

interruption of the contract award procedure by the contracting authorityentity as laid down in Section 75

Section 21

Conduct of the negotiated procedure

The contracting authorityentity shall negotiate with the tenderers in order to adapt the ten-

ders submitted by them to the requirements set in the contract notice or invitation to tender

The purpose of the negotiations shall be to select the best tender in accordance with Section 57

The negotiations may take place in successive stages in order to reduce the number of tenders

to be discussed during the negotiations by applying the award criteria provided that the re-

course to a phased procedure and criteria applied during the negotiations are indicated in the

contract notice or invitation to tender

In order to ensure a genuine competition there must be a sufficient number of candidates provided that there is a sufficient number of tenderers and tenders that meet the criteria

The contracting authorityentity shall ensure equal treatment of all candidates and tenderers

during the negotiations and shall not provide information in a manner which may compromise the equal treatment of the participants in the competitive bidding

11

Section 22

Direct award of contracts

The contracting authorityentity may award public contracts by a direct award

1) when no tenders or suitable tenders or applications have been submitted in response to a

restricted procedure negotiated procedure or competitive dialogue procedure and the initial conditions of the contract are not substantially altered

2) when applications have been submitted in response to a restricted procedure negotiated

procedure or competitive dialogue procedure the contents of which do not correspond to the

requirements of the invitation to tender or if the tenders are not acceptable under Sections

39 41ndash43 46ndash56 60 and 62 an additional requirement shall be that the initial conditions of

the invitation to tender are not substantially altered and all tenderers which fulfil the minimum

requirements under Sections 46ndash54 and which have during the preceding procedure submitted

a tender which fulfills the format requirements of the tendering procedure shall be included in

the direct award of contracts

3) when for technical reasons or for reasons connected with the protection of exclusive rights

the contract may be awarded only to a particular supplier

4) when for reasons of urgency brought about by a crisis the time limits for the restricted pro-

cedure or negotiated procedure and the time limits for the accelerated procedure laid down in Section 30 cannot be complied with

5) when execution of the contract is absolutely necessary and the prescribed time limits can-

not be complied with for reasons of extreme urgency brought about by events unforeseeable by and independent of the contracting authorityentity

6) when the matter involves air and maritime transport services to armed forces or security

forces transferred or to be transferred abroad and such services can only be procured from

suppliers whose tenders are valid only for such a short period of time that compliance with the

set time limits is not possible

7) when the products to be acquired are manufactured purely for scientific and research pur-

poses and it is not a matter of securing the commercial viability of the products through mass production or to recover research and development costs

8) when the case involves a research and development service that has not been excluded from the scope of this Act on the basis of Section 8

9) for supplies quoted and purchased on a commodity market

10) for the purchase of supplies on particularly advantageous terms from either a supplier

winding up its business activities or from the receivers of a bankruptcy or liquidators in insol-vency proceedings an arrangement with creditors or a similar procedure

Section 23

Direct award of contracts for additional supplies

The contracting authorityentity may award contracts directly for additional supplies by the

original supplier which are intended either as a partial replacement or an extension of the pre-

vious delivery or installation provided that a change of supplier would oblige the contracting

authorityentity to acquire material with different technical characteristics which would result

in incompatibility or disproportionate technical difficulties in operation and maintenance The

validity period of such contracts and that of recurrent contracts may not exceed a maximum of

five years except in exceptional cases where the expected life cycle of the supplies equipment

or systems and the technical problems resulting from the change of supplier require a longer period of validity

In addition to the provisions laid down in subsection 1 the contracting authorityentity may

award contracts directly for additional works or services not included in the original contract

but which are to be acquired from the original supplier and have through unforeseen circum-

stances become necessary for the performance of the works or services as originally de-

scribed However such additional works or services cannot be technically or economically sep-

12

arated from the original contract without major inconvenience to the contracting authori-

tiesentities or when such works or services although separable from the performance of the

original contract are strictly necessary for the completion of the original contract In addition

the aggregate value of contracts awarded for additional works or services may not exceed

50 of the amount of the original contract

In addition to the provisions laid down in subsections 1 and 2 the contracting authorityentity

may award a contract for new works or services directly to the original supplier provided that

such works and services are in conformity with the contract awarded earlier according to the

restricted procedure The aforementioned procedure may be used on condition that the con-

tract notice for the original works or services indicates the possible use of a later direct award

of contract and provided that the estimated value of additional services or new public works

shall be taken into consideration when calculating the aggregate value of the original contract

Direct award of contract may be used only during the five years following the conclusion of the

original contract excluding exceptional conditions where the expected life cycle of the sup-

plies equipment or systems and the technical problems resulting from the change of supplier require a longer period of validity

Section 24

Competitive dialogue procedure

The contracting authorityentity may use the competitive dialogue procedure in particularly complex contracts where

1) the contracting authorityentity is not objectively able to specify the legal or financial condi-

tions of the contract or the technical solutions capable of satisfying their needs or objectives in accordance with Section 37(2)(2ndash4) and

2) the criterion used is to award the contract to the economically most advantageous tender

The contracting authorityentity shall ensure equal treatment of all tenderers and shall not

provide information in a manner that may compromise the equal treatment of the participants in competitive bidding

The contracting authorityentity may not reveal to the other participants in competitive bid-

ding solutions proposed by another tenderer or confidential information communicated during the negotiations without the agreement of the candidate or tenderer

The contracting authorityentity may pay monetary or other rewards to the participants in the competitive dialogue

Section 25

Conduct of the competitive dialogue

The contracting authorityentity shall publish a contract notice setting out their needs and re-

quirements for the contract The contracting authorityentity may further define the objective and content of the contract in a project description document

The contracting authorityentity shall initiate with the candidates selected in accordance with

the provisions of Sections 46ndash54 a dialogue the aim of which is to define one or more solu-

tions to fulfil the contract The contracting authorityentity may discuss all aspects of the con-tract with the candidates during this dialogue

The dialogue may take place in successive stages in order to reduce the number of tenders to

be discussed during the dialogue by applying the comparison criteria indicated in the invitation

to tender The contract notice or the project description shall indicate the recourse to a phased procedure and the criteria applied

The contracting authorityentity shall conclude the dialogue when it can identify the solutions

capable of realising the contract The contracting authorityentity shall inform the participants of the conclusion of the dialogue

The contracting authorityentity shall request the candidates to submit their final tenders on

the basis of the solutions presented and specified during the dialogue The tender shall contain

13

all the elements required for the performance of the project in accordance with the invitation

to tender In order to ensure a genuine competition the contracting authorityentity shall re-

quest tenders from a sufficient number of candidates provided that there is a sufficient num-ber of candidates or solutions that meet the criteria

The tenders shall be assessed on the basis of the comparison criteria indicated in the contract

notice or the project description The contracting authorityentity shall set the comparison cri-teria and award the contract in accordance with the provisions laid down in Section 57

The final tenders may be clarified and specified at the request of the contracting authori-

tyentity However such clarification or specification may not involve changes to the essential

features of the tenders or the invitations to tender in a manner that would distort competition

or have a discriminatory effect On the same conditions the contracting authorityentity may

ask the tenderer to clarify or specify aspects of or confirm commitments contained in the winning tender

Section 26

Framework agreement

The contracting authorityentit shall choose the suppliers pursuant to the framework agree-

ment by restricted or negotiated procedures The contracting authorityentity may also choose

the suppliers to the framework agreement by awarding the contract directly pursuant to the

provisions of Section 22 The suppliers to the framework agreement shall be admitted by ap-

plying the award criteria set in accordance with Chapter 8 Where a framework agreement is

concluded with several suppliers a minimum of three suppliers shall be selected unless there

are fewer suitable suppliers and admissible tenders that meet the award criteria

Contracts based on framework agreements shall be concluded with the original parties to the

agreement During the term of the agreement the parties may not make substantial amend-

ments to the terms laid down in the framework agreement The framework agreement may not be used in such a way as to distort restrict or prevent competition

The term of the framework agreement may not exceed seven years In exceptional cases the

framework agreement may be longer in duration when justified by the subject of the frame-

work agreement and taking into account the expected life cycle of the supplies equipment

and systems delivered and the technical problems that may result from the change of suppli-er

Section 27

Contracts based on a framework agreement

If the contracting authorityentity has concluded a framework agreement with a single suppli-

er contracts based on that agreement shall be awarded in accordance with the terms laid

down in the framework agreement The contracting authorityentity may ask the supplier to specify or supplement the tender in writing as needed

If the contracting authorityentity has concluded a framework agreement with several suppli-

ers contracts based on those agreements shall be awarded either by application of the terms

laid down in the framework agreement without reopening competition or where not all of the

terms are laid down in the framework agreement inviting the parties to the framework

agreement to tender in accordance with the terms of the framework agreement and where

appropriate with the terms of the call for tenders Where necessary the terms of the frame-

work agreement may be clarified or further defined

The contracting authorityentity carrying out a mini-competition to call off contracts under a

framework agreement shall ask the parties to the framework agreement capable of performing

the contract to submit a tender in writing The contracting authorityentity shall fix a time limit

which is sufficiently long to allow tenders to be submitted taking into account the subject mat-

ter of the contract the time needed to submit tenders and other similar factors The content of

the tenders shall remain confidential until the stipulated time limit of the mini-competition has

14

expired The contracting authorityentity shall choose the best tender in accordance with the

award criterion and comparison criteria indicated in the invitation to tender

Chapter 6

Mandatory publication of public contracts and time limits

Section 28

Publication requirement

When the procurement is carried out with the restricted procedure negotiated procedure or

competitive dialogue the contracting authorityentity shall provide for publication an infor-

mation notice concerning the procurement of the supplies when exceeding the EU threshold as

laid down in Section 12(1) above and the procurement of a service work and framework

agreement listed in Annex A The information notice shall include sufficient information to make a request to participate

The contracting authorityentity that has procured supplies exceeding the EU threshold as laid

down in Section 12(1) above or a service work or framework agreement listed in Annex A

shall provide a contract award notice for publication concerning the results of the award proce-

dure within 48 hours from concluding a public contract or framework agreement In addition

the contracting authorityentity shall provide a contract award notice for publication concerning

secondary service contracts which exceed the EU threshold as laid down in Section 12(1)

listed in Annex B and the suspension of the award procedure as laid down in Section 75 The

contract award notice concerning the suspension of the award procedure shall provide the rea-

sons for suspension The contract award notice concerning secondary service contracts as

listed in Annex B shall indicate whether the notice can be published The obligation to provide

a contract award notice for publication does not concern separate public contracts or direct award of contracts concluded within a framework agreement

The contracting authorityentity shall not provide information in the contract award notice the

publication of which is against the provisions laid down to protect the public interest or in par-

ticular the security of the state In addition the contracting authorityentity shall not provide

information which could endanger legally protected business secrets or harm commercial and healthy competition among tenderers

If the contracting authorityentity intends to benefit from the possibility to shorten regulated

bidding windows as laid down in Section 31(2) it shall provide a prior information notice for

publication The prior information notice shall provide the information available at the time the

notice is given on defence and security procurement that complies with the information in con-tract notice in the restricted procedure

In addition the contracting authorityentity may provide for publication a contract notice con-cerning a direct contract

More specific rules concerning the requirements for publication the means of communication

which may be used in sending the notices to be published their content publication and other

aspects of the requirement for publication shall be laid down in a Government decree

Section 29

Minimum time limits and fixing the time limits

When fixing time limits for tendering procedures the contracting authorityentity shall take

account of the quality and complexity of the procurement and the time required for drawing up

and submitting tenders Time limits shall be calculated from the date following the date on

which the contract notice is sent to be published In the case of a restricted procedure the

deadline fixed for the receipt of tenders shall be calculated from the date on which the invita-tion to tender was sent

In the case of a restricted procedure negotiated procedure and competitive dialogue the min-imum time limit for the submission of tenders shall be 37 days

15

In the case of a restricted procedure the minimum time limit for the receipt of tenders shall be

at least 40 days In the case of a negotiated procedure and competitive dialogue the deadline

fixed for the receipt of tenders shall be reasonable taking into account the subject matter and extent of the contract as well as other matters related thereto

Section 30

Accelerated procedure

In the case of restricted procedures and negotiated procedures the time limits laid down in

Section 29 above may be shortened if urgency renders them impracticable However the time

limit for the receipt of requests to participate shall be no less than 15 days or no less than 10

days if the notice is sent by electronic means In the case of the restricted procedure the min-imum time limit for the receipt of tenders shall be 10 days

Section 31

Reducing the time limits

The time limit set for the submission of participation requests can be restricted in the restrict-

ed procedure negotiated procedure and competitive dialogue by seven days if the contract

notices are sent for publication by electronic means

In restricted procedures the time limit for the receipt of tenders may be reduced to no less

than 22 days if the contracting authorityentity has sent the prior information notice for publi-

cation a minimum of 52 days and a maximum of 12 months before the date on which the con-tract notice was sent for publication

The time limit for the receipt of tenders may be reduced by an additional five days in the re-

stricted procedure provided that the contracting authorityentity offers full access to the con-

tract documents by electronic means from the date of publication of the notice specifying in the text of the notice the internet address where these documents are accessible

Section 32

Lengthening the time limits

The time limit for the receipt of tenders should be lengthened so that the bidders can familiar-

ise themselves with the information needed for drawing up the bids if the invitation to tender

documents or additional information that was requested in time have not been delivered within

the prescribed time limits or if submitting the bid requires an on-site visit or an on-site exam-ination of the documents related to the invitation to tender

Chapter 7

Invitation to tender and defining the object of the contract

Section 33

Invitation to tender

The invitation to tender shall be submitted in writing and drawn up to be sufficiently clear in

order to enable submission of commensurate and mutually comparable tenders The invitation

to tender or the contract notice shall invite suppliers to submit their tenders in writing by the

deadline

In case of a discrepancy between the invitation to tender and the contract notice the contract

notice shall apply

The contracting authorityentity may charge a reasonable fee for the invitation-to-tender doc-

uments to recover the costs arising from the exceptionally extensive scope of the documenta-tion the materials related thereto or other similar factors

5

3) Public works or services meant to be used for security purposes and for the procurement of

which classified documents are submitted drawn up or otherwise dealth with

Defence equipment refers to products which are specifically designed or adjusted for military

purposes and meant to be used as a weapon ammunition or defence materiel

Section 6

Public contracts applicable to several functions and the application of the Act on pub-

lic contracts

If the procurement of works products or services is included in part within the scope of appli-

cation of this Act and in part within the scope of the Act on Public Contracts (3482007)

hereafter referred to as the Public Procurement Act or within the scope of application of the

Act on public contracts in special sectors it shall be conducted in accordance with this Act

provided that objective reasons justify the execution of one single contract

If the procurement of works products or services is included only in part within the scope of

application of this Act while at the same time being excluded from the scope of application of

the Public Procurement Act or the Act on Public Contracts in Special Sectors and the procure-

ment can be carried out on the basis of one contract only the provisions of this Act shall not

apply with the exception of a procurement rectification laid down in Section 85 of this Act and

the prohibition to appeal laid down in Section 104(2)

The procurement shall not be carried out as one contract for the purpose of avoiding the appli-

cation of the provisions of this Act the Procurement Act or the Act on public contracts in spe-cial sectors

The contracting authorityentity may decide to apply the provisions of the Public Procurement

Act in the procurement of a product service or work instead of this Act The Public Procure-

ment Act will then be applied in its entirety while Section 77(3) shall be applied to the notifica-tion of the decision made by the contracting authorityentity

Section 7

General exclusions from the scope of application of this Act

With the exception of a procurement rectification laid down in Section 85 and a prohibition to

appeal laid down in Section 104(2) this act shall not apply to

1) Defence and security procurement when declared secret or when the application of this Act

would oblige the contracting authorityentity to disclose information the publishing of which is

against the essential security interests of the state

2) Defence and security procurement between authorities

3) Defence and security procurement to which the following points apply

a) special procedural provisions between Finland and at least one state outside

the European Economic Area on the basis of an international treaty or ar-

rangement

b) special procedural provisions based on an international treaty or arrange-

ment related to the placement of troops

c) special procedural provisions of an international organisation when such or-

ganisation conducts procurement for its own purposes or

d) special procedural provisions of an international organisation when the con-

tracting authorityentity is obliged to carry out the procurement in accord-

ance with such provisions

6

4) Defence and security procurement related to a joint new product research and development

project between at least two European Economic Area member states and not to procure-

ment which has been executed during the later stages in the life cycle of this product or

5) Procurement executed in connection with sending troops to areas outside the European

Economic Area and carried out when the procurement ndash for operational requirements ndash must

be conducted with a supplier operating in that area

This act shall also not apply to

1) Defence and security procurement carried out by the contracting authorityentity referred to

in Section 4(1)(4) and when the value of the contract does not exceed the EU threshold val-

ues in accordance with Section 12 and

2) defence and security procurement carried out to perform a function in terms of which it has

been confirmed by a decision of the European Commission ndash in accordance with Section 11 of

the Act on public contracts in special sectors ndash that the function is open to direct competition in markets that have no restrictions on entry

If all of the participants in the research and development project referred to in subsection 1

point 4 above are member states of the European Union the European Commission must be

informed of such a search and development project The notice must be issued when the re-

search and development project is started and must include information on the cost-sharing

agreement between the parties the share of research and development expenditure relative to

the total costs of the project and in the event that the planned procurement involves member states their shares

Section 8

Specific exclusions from the scope of application of this Act

With the exception of a procurement rectification laid down in Section 85 and a prohibition to

appeal laid down in Section 104(2) this Act shall not apply to defence and security procure-ment related to intelligence activities

Similarly with the exception of a procurement rectification laid down in Section 85 and a pro-

hibition to appeal laid down in Section 104(2) this Act shall also not apply to defence and se-curity procurement concerning

1) the acquisition or rental ndash by whatever form of financing ndash of land existing buildings or oth-er immovable property or services related to the rights concerning them

2) arbitration and conciliation services

3) financial services with the exception of insurance services

4) employment contracts

5) research and development services other than those where the benefits accrue exclusively

to the contracting authorityentity for use in the conduct of its own affairs on condition that the service provided is wholly remunerated by the contracting authorityentity

Section 9

Procurement from in-house companies

This Act shall not apply to defence and security procurement from a body formally separate

and ndash in terms of decision making ndash independent of the contracting authorityentity carrying

out the procurement provided that the contracting authorityentity ndash by itself or in coopera-

tion with other contracting entities ndash oversees the body in question in the same way it over-

sees its own places of operation and the body conducts the majority of its operations with

those contracting entities under whose control it operates

7

Section 10

Procurement from or through a central purchasing body

Contracting entities which purchase products services or works that fall within the scope of

application of this Act from or through a central purchasing body shall be deemed to have complied with this Act insofar as the central purchasing body has complied with it

A central purchasing body is a contracting authorityentity or a European public body which

acquires supplies or services for the contracting entities or executes ndash on their behalf ndash public contracts or framework agreements on supplies services or works

Section 11

Reserving procurement for sheltered workshops

A contracting authorityentity may limit participation in competitive bidding to sheltered work-

shops or similar bodies or provide for such contracts to be carried out in the context of shel-

tered employment programmes where most of the employees concerned are people with disa-

bilities who by reason of the nature or seriousness of their disabilities cannot carry on occu-

pational activity under normal conditions The public contract notice must indicate that the

contract is reserved for sheltered workshops or shall be carried out in the context of sheltered

employment programmes

Chapter 3

Thresholds and implementation provisions with regard to types of procurement

Section 12

EU thresholds

With regard to thresholds applicable to the award of contracts EU thresholds which are based

on Commission Regulation (EC) 12512011 amending Directives 200417EC 200418EC and 200981EC of the European Parliament and of the Council shall be

1) EUR 400000 for public supply and service contracts and

2) EUR 5000000 for public works contracts

The European Commission shall revise the threshold values by means of a regulation every

two years in accordance with the procedure laid down in Article 68 of the Directive on Defence

and Security procurement and publish the revised thresholds in the Official Journal of the Eu-

ropean Union following the publication the thresholds laid down in subsection 1 shall be re-

placed by the new thresholds as revised by the European Commission The Ministry of Eco-

nomic Affairs and Employment must communicate without delay any changes to the EU

thresholds in the Official Journal in accordance with the revisions made by the Commission

Section 13

National thresholds

With the exception of a procurement rectification laid down in Section 85 and a prohibition to

appeal laid down in Section 104(2) this Act shall not apply to the following defence and securi-ty contracts

1) procurement of products and services whose estimated value excluding value added tax is less than EUR 100000

2) public works whose predetermined value excluding value added tax is less than EUR 500000

8

Section 14

Provisions applicable to the procurement of products and services and public works

contracts

The provisions of this Act with the exception of the provisions laid down in Title III shall apply

to the procurement of products and works referred to in Section 12(1) above exceeding the

EU threshold and to the procurement of the services listed in Annex A The provisions of this

Act are similarly applicable to the procurement of the services referred to in Annex A along

with the services referred to in Annex B provided that the value of the services referred to in

Annex A exceeds the value of the services referred to in Annex B and the total value of the contract exceeds the EU threshold

The provisions of Title II shall apply to the procurement of products and works and the ser-

vices listed in Annex A which are below the EU threshold referred to in Section 12(1) above but exceed the national threshold referred to in Section 13

The provisions of Title II shall not apply to the procurement the services listed in Annex B

However the provisions of Section 28 concerning the contract award notice obligation and di-

rect award of contract notification the provisions of Sections 37ndash38 concerning technical speci-

fications and technical specifications of environmental characteristics and the provisions of

Section 44 concerning proof provided by the tenderer shall apply to the procurement of the services listed in Annex B exceeding the EU threshold referred to in Section 12(1) above

Section 15

Provisions applicable to certain other contracts

The provisions of Title II shall not apply to contracts which fulfil the requirements of Article 346

(1)(b) of TFEU and whose value exceeds the national threshold laid down in Section 13

If the procurement of works products or services is included within the scope of application of

this Act but only a part of the procurement fulfils the requirements set in Article 346 (1)(b) of

TFEU and the procurement can be carried out on the basis of one contract only the provisions

of Title II shall not appply

Chapter 4

Calculation of the estimated value of a contract

Section 16

Calculation of the estimated value of a contract

The criterion for the calculation of the estimated value of a contract shall be the maximum to-

tal compensation excluding value added tax Calculation of the estimated value shall take ac-

count of any alternative methods of execution of the contract and option or extension clauses included in the contract

With regard to public works contracts calculation of the estimated value shall take account of

both the cost of the work and the total estimated value of the supplies necessary to execute the work and placed at the contractors disposal by the contracting authorityentity

Where the contract is being awarded at the same time in separate lots account shall be taken

of the total estimated value of all such lots when calculating the estimated value of the con-

tract Where the aggregate value of the lots exceeds the EU threshold laid down in Section 12

or the national threshold laid down in Section 13 the provisions of chapter 3 shall apply to the awarding of each lot separately

The provisions of this Act 10 shall not apply to lots whose estimated value is less than EUR

80000 for service and supply contracts and EUR 1 million for works provided that the aggre-

9

gate value of those lots does not exceed 20 of the aggregate value of the lots as a whole If

the estimated value of a work exceeds the national threshold laid down in Section 13 the con-tracting authorityentity shall act in line with the provisions laid down in Section 14(2)

The estimated value shall be the value at the time when the contracting authorityentity pub-lishes the procurement notice or otherwise commences the procurement procedure

Section 17

Calculating the estimated value of certain public service contracts

The value taken as a basis for calculating the estimated contract value shall be as follows

1) for insurance services the premiums payable and other forms of remuneration

2) for design contracts fees and commissions payable and other forms of remuneration

Section 18

Calculation of estimated value for the contract period

With regard to public supply contracts related to leasing hire rental or hire purchase of prod-

ucts the value to be taken as a basis for calculating the estimated contract value shall be as follows

1) in the case of fixed-term public contracts if that term is less than or equal to 12 months

the total estimated value for the term of the contract or if the term of the contract is greater

than 12 months the total value including the estimated residual value or

2) in the case of public contracts without a fixed term or the term of which cannot be defined the estimated monthly value multiplied by 48

In the case of public supply or service contracts which are regular in nature or which are in-

tended to be renewed within a given period the calculation of the estimated contract value shall be based on the following

1) either the total actual value of the successive contracts of the same type awarded during

the preceding 12 months or financial year adjusted to take account of the changes in quantity or value which would occur in the course of the 12 months following the initial contract or

2) the total estimated value of the successive contracts awarded during the 12 months follow-ing the first delivery or during the financial year if that is longer than 12 months

For public service contracts which do not indicate a total price the value to be taken as a basis for calculating the estimated contract value shall be as follows

1) in the case of fixed-term public contracts if that term is less than or equal to 48 months

the total estimated value for the term of the contract or

2) in the case of public contracts without a fixed term or if the term of the contract is greater than 48 months the estimated monthly value multiplied by 48

With regard to framework agreements the value to be taken into consideration in calculating

the estimated value of the contract shall be the total estimated value of all the contracts en-visaged for the term of the framework agreement

Section 19

Prohibition on artificial subdivision or combination of contracts

No public contract may be divided into lots severed or calculated using unusual methods with

the intention of excluding it from the scope of this Act A public supply or service contract may

not be combined with a works contract nor may contracts be otherwise artificially combined to prevent them coming within the scope of this Act

10

PART II

Provisions on public supply contracts primary public service contracts as defined in

Annex A and public works contracts above the EU threshold

Chapter 5

Contract award procedures

Section 20

Choosing the contract award procedure

The competition procedures for public contracts are defined in Section 3 points 9ndash13 Restrict-

ed or negotiated procedures shall be primarily used in awarding contracts Direct award of con-

tracts the competitive dialogue procedure and framework agreements may be used under the conditions laid down in Sections 22ndash27

In the restricted procedure negotiated procedure and competitive dialogue procedure the

contracting authorityentity may limit in advance the number of candidates they will invite to

tender The contracting authorityentity shall indicate in the contract notice the minimum

number of candidates they intend to invite and where appropriate the maximum number The

contracting authorityentity shall apply the minimum requirements indicated in the contract

notice and objective and non-discriminatory criteria in selecting the candidates invited to ten-der

In order to ensure genuine competition the number of candidates to be invited must be suffi-

cient in relation to the size and subject matter of the contract In the restricted procedure

negotiated procedure and competitive dialogue procedure a minimum of three candidates

shall be invited to tender unless there are fewer than three suitable candidates

The minimum number of candidates to be invited to tender shall be the number of candidates

set in advance by the contracting authorityentity If there are fewer suitable candidates the

contracting authorityentity may continue the procedure by inviting suitable candidates to

submit a tender or to commence negotiations Only those candidates which meet the minimum

criteria and have submitted a request to participate may be invited to tender

If the contracting authorityentity is of the opinion that the number of candidates is not suffi-

cient to ensure a genuine competition it may publish the original contract notice again and set

a new time limit for submission of participation requests The candidates invited to tender shall

be selected from among the candidates who have come forward on the basis of the original

and the new contract notice Publication of a new contract notice does not restrict the possible

interruption of the contract award procedure by the contracting authorityentity as laid down in Section 75

Section 21

Conduct of the negotiated procedure

The contracting authorityentity shall negotiate with the tenderers in order to adapt the ten-

ders submitted by them to the requirements set in the contract notice or invitation to tender

The purpose of the negotiations shall be to select the best tender in accordance with Section 57

The negotiations may take place in successive stages in order to reduce the number of tenders

to be discussed during the negotiations by applying the award criteria provided that the re-

course to a phased procedure and criteria applied during the negotiations are indicated in the

contract notice or invitation to tender

In order to ensure a genuine competition there must be a sufficient number of candidates provided that there is a sufficient number of tenderers and tenders that meet the criteria

The contracting authorityentity shall ensure equal treatment of all candidates and tenderers

during the negotiations and shall not provide information in a manner which may compromise the equal treatment of the participants in the competitive bidding

11

Section 22

Direct award of contracts

The contracting authorityentity may award public contracts by a direct award

1) when no tenders or suitable tenders or applications have been submitted in response to a

restricted procedure negotiated procedure or competitive dialogue procedure and the initial conditions of the contract are not substantially altered

2) when applications have been submitted in response to a restricted procedure negotiated

procedure or competitive dialogue procedure the contents of which do not correspond to the

requirements of the invitation to tender or if the tenders are not acceptable under Sections

39 41ndash43 46ndash56 60 and 62 an additional requirement shall be that the initial conditions of

the invitation to tender are not substantially altered and all tenderers which fulfil the minimum

requirements under Sections 46ndash54 and which have during the preceding procedure submitted

a tender which fulfills the format requirements of the tendering procedure shall be included in

the direct award of contracts

3) when for technical reasons or for reasons connected with the protection of exclusive rights

the contract may be awarded only to a particular supplier

4) when for reasons of urgency brought about by a crisis the time limits for the restricted pro-

cedure or negotiated procedure and the time limits for the accelerated procedure laid down in Section 30 cannot be complied with

5) when execution of the contract is absolutely necessary and the prescribed time limits can-

not be complied with for reasons of extreme urgency brought about by events unforeseeable by and independent of the contracting authorityentity

6) when the matter involves air and maritime transport services to armed forces or security

forces transferred or to be transferred abroad and such services can only be procured from

suppliers whose tenders are valid only for such a short period of time that compliance with the

set time limits is not possible

7) when the products to be acquired are manufactured purely for scientific and research pur-

poses and it is not a matter of securing the commercial viability of the products through mass production or to recover research and development costs

8) when the case involves a research and development service that has not been excluded from the scope of this Act on the basis of Section 8

9) for supplies quoted and purchased on a commodity market

10) for the purchase of supplies on particularly advantageous terms from either a supplier

winding up its business activities or from the receivers of a bankruptcy or liquidators in insol-vency proceedings an arrangement with creditors or a similar procedure

Section 23

Direct award of contracts for additional supplies

The contracting authorityentity may award contracts directly for additional supplies by the

original supplier which are intended either as a partial replacement or an extension of the pre-

vious delivery or installation provided that a change of supplier would oblige the contracting

authorityentity to acquire material with different technical characteristics which would result

in incompatibility or disproportionate technical difficulties in operation and maintenance The

validity period of such contracts and that of recurrent contracts may not exceed a maximum of

five years except in exceptional cases where the expected life cycle of the supplies equipment

or systems and the technical problems resulting from the change of supplier require a longer period of validity

In addition to the provisions laid down in subsection 1 the contracting authorityentity may

award contracts directly for additional works or services not included in the original contract

but which are to be acquired from the original supplier and have through unforeseen circum-

stances become necessary for the performance of the works or services as originally de-

scribed However such additional works or services cannot be technically or economically sep-

12

arated from the original contract without major inconvenience to the contracting authori-

tiesentities or when such works or services although separable from the performance of the

original contract are strictly necessary for the completion of the original contract In addition

the aggregate value of contracts awarded for additional works or services may not exceed

50 of the amount of the original contract

In addition to the provisions laid down in subsections 1 and 2 the contracting authorityentity

may award a contract for new works or services directly to the original supplier provided that

such works and services are in conformity with the contract awarded earlier according to the

restricted procedure The aforementioned procedure may be used on condition that the con-

tract notice for the original works or services indicates the possible use of a later direct award

of contract and provided that the estimated value of additional services or new public works

shall be taken into consideration when calculating the aggregate value of the original contract

Direct award of contract may be used only during the five years following the conclusion of the

original contract excluding exceptional conditions where the expected life cycle of the sup-

plies equipment or systems and the technical problems resulting from the change of supplier require a longer period of validity

Section 24

Competitive dialogue procedure

The contracting authorityentity may use the competitive dialogue procedure in particularly complex contracts where

1) the contracting authorityentity is not objectively able to specify the legal or financial condi-

tions of the contract or the technical solutions capable of satisfying their needs or objectives in accordance with Section 37(2)(2ndash4) and

2) the criterion used is to award the contract to the economically most advantageous tender

The contracting authorityentity shall ensure equal treatment of all tenderers and shall not

provide information in a manner that may compromise the equal treatment of the participants in competitive bidding

The contracting authorityentity may not reveal to the other participants in competitive bid-

ding solutions proposed by another tenderer or confidential information communicated during the negotiations without the agreement of the candidate or tenderer

The contracting authorityentity may pay monetary or other rewards to the participants in the competitive dialogue

Section 25

Conduct of the competitive dialogue

The contracting authorityentity shall publish a contract notice setting out their needs and re-

quirements for the contract The contracting authorityentity may further define the objective and content of the contract in a project description document

The contracting authorityentity shall initiate with the candidates selected in accordance with

the provisions of Sections 46ndash54 a dialogue the aim of which is to define one or more solu-

tions to fulfil the contract The contracting authorityentity may discuss all aspects of the con-tract with the candidates during this dialogue

The dialogue may take place in successive stages in order to reduce the number of tenders to

be discussed during the dialogue by applying the comparison criteria indicated in the invitation

to tender The contract notice or the project description shall indicate the recourse to a phased procedure and the criteria applied

The contracting authorityentity shall conclude the dialogue when it can identify the solutions

capable of realising the contract The contracting authorityentity shall inform the participants of the conclusion of the dialogue

The contracting authorityentity shall request the candidates to submit their final tenders on

the basis of the solutions presented and specified during the dialogue The tender shall contain

13

all the elements required for the performance of the project in accordance with the invitation

to tender In order to ensure a genuine competition the contracting authorityentity shall re-

quest tenders from a sufficient number of candidates provided that there is a sufficient num-ber of candidates or solutions that meet the criteria

The tenders shall be assessed on the basis of the comparison criteria indicated in the contract

notice or the project description The contracting authorityentity shall set the comparison cri-teria and award the contract in accordance with the provisions laid down in Section 57

The final tenders may be clarified and specified at the request of the contracting authori-

tyentity However such clarification or specification may not involve changes to the essential

features of the tenders or the invitations to tender in a manner that would distort competition

or have a discriminatory effect On the same conditions the contracting authorityentity may

ask the tenderer to clarify or specify aspects of or confirm commitments contained in the winning tender

Section 26

Framework agreement

The contracting authorityentit shall choose the suppliers pursuant to the framework agree-

ment by restricted or negotiated procedures The contracting authorityentity may also choose

the suppliers to the framework agreement by awarding the contract directly pursuant to the

provisions of Section 22 The suppliers to the framework agreement shall be admitted by ap-

plying the award criteria set in accordance with Chapter 8 Where a framework agreement is

concluded with several suppliers a minimum of three suppliers shall be selected unless there

are fewer suitable suppliers and admissible tenders that meet the award criteria

Contracts based on framework agreements shall be concluded with the original parties to the

agreement During the term of the agreement the parties may not make substantial amend-

ments to the terms laid down in the framework agreement The framework agreement may not be used in such a way as to distort restrict or prevent competition

The term of the framework agreement may not exceed seven years In exceptional cases the

framework agreement may be longer in duration when justified by the subject of the frame-

work agreement and taking into account the expected life cycle of the supplies equipment

and systems delivered and the technical problems that may result from the change of suppli-er

Section 27

Contracts based on a framework agreement

If the contracting authorityentity has concluded a framework agreement with a single suppli-

er contracts based on that agreement shall be awarded in accordance with the terms laid

down in the framework agreement The contracting authorityentity may ask the supplier to specify or supplement the tender in writing as needed

If the contracting authorityentity has concluded a framework agreement with several suppli-

ers contracts based on those agreements shall be awarded either by application of the terms

laid down in the framework agreement without reopening competition or where not all of the

terms are laid down in the framework agreement inviting the parties to the framework

agreement to tender in accordance with the terms of the framework agreement and where

appropriate with the terms of the call for tenders Where necessary the terms of the frame-

work agreement may be clarified or further defined

The contracting authorityentity carrying out a mini-competition to call off contracts under a

framework agreement shall ask the parties to the framework agreement capable of performing

the contract to submit a tender in writing The contracting authorityentity shall fix a time limit

which is sufficiently long to allow tenders to be submitted taking into account the subject mat-

ter of the contract the time needed to submit tenders and other similar factors The content of

the tenders shall remain confidential until the stipulated time limit of the mini-competition has

14

expired The contracting authorityentity shall choose the best tender in accordance with the

award criterion and comparison criteria indicated in the invitation to tender

Chapter 6

Mandatory publication of public contracts and time limits

Section 28

Publication requirement

When the procurement is carried out with the restricted procedure negotiated procedure or

competitive dialogue the contracting authorityentity shall provide for publication an infor-

mation notice concerning the procurement of the supplies when exceeding the EU threshold as

laid down in Section 12(1) above and the procurement of a service work and framework

agreement listed in Annex A The information notice shall include sufficient information to make a request to participate

The contracting authorityentity that has procured supplies exceeding the EU threshold as laid

down in Section 12(1) above or a service work or framework agreement listed in Annex A

shall provide a contract award notice for publication concerning the results of the award proce-

dure within 48 hours from concluding a public contract or framework agreement In addition

the contracting authorityentity shall provide a contract award notice for publication concerning

secondary service contracts which exceed the EU threshold as laid down in Section 12(1)

listed in Annex B and the suspension of the award procedure as laid down in Section 75 The

contract award notice concerning the suspension of the award procedure shall provide the rea-

sons for suspension The contract award notice concerning secondary service contracts as

listed in Annex B shall indicate whether the notice can be published The obligation to provide

a contract award notice for publication does not concern separate public contracts or direct award of contracts concluded within a framework agreement

The contracting authorityentity shall not provide information in the contract award notice the

publication of which is against the provisions laid down to protect the public interest or in par-

ticular the security of the state In addition the contracting authorityentity shall not provide

information which could endanger legally protected business secrets or harm commercial and healthy competition among tenderers

If the contracting authorityentity intends to benefit from the possibility to shorten regulated

bidding windows as laid down in Section 31(2) it shall provide a prior information notice for

publication The prior information notice shall provide the information available at the time the

notice is given on defence and security procurement that complies with the information in con-tract notice in the restricted procedure

In addition the contracting authorityentity may provide for publication a contract notice con-cerning a direct contract

More specific rules concerning the requirements for publication the means of communication

which may be used in sending the notices to be published their content publication and other

aspects of the requirement for publication shall be laid down in a Government decree

Section 29

Minimum time limits and fixing the time limits

When fixing time limits for tendering procedures the contracting authorityentity shall take

account of the quality and complexity of the procurement and the time required for drawing up

and submitting tenders Time limits shall be calculated from the date following the date on

which the contract notice is sent to be published In the case of a restricted procedure the

deadline fixed for the receipt of tenders shall be calculated from the date on which the invita-tion to tender was sent

In the case of a restricted procedure negotiated procedure and competitive dialogue the min-imum time limit for the submission of tenders shall be 37 days

15

In the case of a restricted procedure the minimum time limit for the receipt of tenders shall be

at least 40 days In the case of a negotiated procedure and competitive dialogue the deadline

fixed for the receipt of tenders shall be reasonable taking into account the subject matter and extent of the contract as well as other matters related thereto

Section 30

Accelerated procedure

In the case of restricted procedures and negotiated procedures the time limits laid down in

Section 29 above may be shortened if urgency renders them impracticable However the time

limit for the receipt of requests to participate shall be no less than 15 days or no less than 10

days if the notice is sent by electronic means In the case of the restricted procedure the min-imum time limit for the receipt of tenders shall be 10 days

Section 31

Reducing the time limits

The time limit set for the submission of participation requests can be restricted in the restrict-

ed procedure negotiated procedure and competitive dialogue by seven days if the contract

notices are sent for publication by electronic means

In restricted procedures the time limit for the receipt of tenders may be reduced to no less

than 22 days if the contracting authorityentity has sent the prior information notice for publi-

cation a minimum of 52 days and a maximum of 12 months before the date on which the con-tract notice was sent for publication

The time limit for the receipt of tenders may be reduced by an additional five days in the re-

stricted procedure provided that the contracting authorityentity offers full access to the con-

tract documents by electronic means from the date of publication of the notice specifying in the text of the notice the internet address where these documents are accessible

Section 32

Lengthening the time limits

The time limit for the receipt of tenders should be lengthened so that the bidders can familiar-

ise themselves with the information needed for drawing up the bids if the invitation to tender

documents or additional information that was requested in time have not been delivered within

the prescribed time limits or if submitting the bid requires an on-site visit or an on-site exam-ination of the documents related to the invitation to tender

Chapter 7

Invitation to tender and defining the object of the contract

Section 33

Invitation to tender

The invitation to tender shall be submitted in writing and drawn up to be sufficiently clear in

order to enable submission of commensurate and mutually comparable tenders The invitation

to tender or the contract notice shall invite suppliers to submit their tenders in writing by the

deadline

In case of a discrepancy between the invitation to tender and the contract notice the contract

notice shall apply

The contracting authorityentity may charge a reasonable fee for the invitation-to-tender doc-

uments to recover the costs arising from the exceptionally extensive scope of the documenta-tion the materials related thereto or other similar factors

6

4) Defence and security procurement related to a joint new product research and development

project between at least two European Economic Area member states and not to procure-

ment which has been executed during the later stages in the life cycle of this product or

5) Procurement executed in connection with sending troops to areas outside the European

Economic Area and carried out when the procurement ndash for operational requirements ndash must

be conducted with a supplier operating in that area

This act shall also not apply to

1) Defence and security procurement carried out by the contracting authorityentity referred to

in Section 4(1)(4) and when the value of the contract does not exceed the EU threshold val-

ues in accordance with Section 12 and

2) defence and security procurement carried out to perform a function in terms of which it has

been confirmed by a decision of the European Commission ndash in accordance with Section 11 of

the Act on public contracts in special sectors ndash that the function is open to direct competition in markets that have no restrictions on entry

If all of the participants in the research and development project referred to in subsection 1

point 4 above are member states of the European Union the European Commission must be

informed of such a search and development project The notice must be issued when the re-

search and development project is started and must include information on the cost-sharing

agreement between the parties the share of research and development expenditure relative to

the total costs of the project and in the event that the planned procurement involves member states their shares

Section 8

Specific exclusions from the scope of application of this Act

With the exception of a procurement rectification laid down in Section 85 and a prohibition to

appeal laid down in Section 104(2) this Act shall not apply to defence and security procure-ment related to intelligence activities

Similarly with the exception of a procurement rectification laid down in Section 85 and a pro-

hibition to appeal laid down in Section 104(2) this Act shall also not apply to defence and se-curity procurement concerning

1) the acquisition or rental ndash by whatever form of financing ndash of land existing buildings or oth-er immovable property or services related to the rights concerning them

2) arbitration and conciliation services

3) financial services with the exception of insurance services

4) employment contracts

5) research and development services other than those where the benefits accrue exclusively

to the contracting authorityentity for use in the conduct of its own affairs on condition that the service provided is wholly remunerated by the contracting authorityentity

Section 9

Procurement from in-house companies

This Act shall not apply to defence and security procurement from a body formally separate

and ndash in terms of decision making ndash independent of the contracting authorityentity carrying

out the procurement provided that the contracting authorityentity ndash by itself or in coopera-

tion with other contracting entities ndash oversees the body in question in the same way it over-

sees its own places of operation and the body conducts the majority of its operations with

those contracting entities under whose control it operates

7

Section 10

Procurement from or through a central purchasing body

Contracting entities which purchase products services or works that fall within the scope of

application of this Act from or through a central purchasing body shall be deemed to have complied with this Act insofar as the central purchasing body has complied with it

A central purchasing body is a contracting authorityentity or a European public body which

acquires supplies or services for the contracting entities or executes ndash on their behalf ndash public contracts or framework agreements on supplies services or works

Section 11

Reserving procurement for sheltered workshops

A contracting authorityentity may limit participation in competitive bidding to sheltered work-

shops or similar bodies or provide for such contracts to be carried out in the context of shel-

tered employment programmes where most of the employees concerned are people with disa-

bilities who by reason of the nature or seriousness of their disabilities cannot carry on occu-

pational activity under normal conditions The public contract notice must indicate that the

contract is reserved for sheltered workshops or shall be carried out in the context of sheltered

employment programmes

Chapter 3

Thresholds and implementation provisions with regard to types of procurement

Section 12

EU thresholds

With regard to thresholds applicable to the award of contracts EU thresholds which are based

on Commission Regulation (EC) 12512011 amending Directives 200417EC 200418EC and 200981EC of the European Parliament and of the Council shall be

1) EUR 400000 for public supply and service contracts and

2) EUR 5000000 for public works contracts

The European Commission shall revise the threshold values by means of a regulation every

two years in accordance with the procedure laid down in Article 68 of the Directive on Defence

and Security procurement and publish the revised thresholds in the Official Journal of the Eu-

ropean Union following the publication the thresholds laid down in subsection 1 shall be re-

placed by the new thresholds as revised by the European Commission The Ministry of Eco-

nomic Affairs and Employment must communicate without delay any changes to the EU

thresholds in the Official Journal in accordance with the revisions made by the Commission

Section 13

National thresholds

With the exception of a procurement rectification laid down in Section 85 and a prohibition to

appeal laid down in Section 104(2) this Act shall not apply to the following defence and securi-ty contracts

1) procurement of products and services whose estimated value excluding value added tax is less than EUR 100000

2) public works whose predetermined value excluding value added tax is less than EUR 500000

8

Section 14

Provisions applicable to the procurement of products and services and public works

contracts

The provisions of this Act with the exception of the provisions laid down in Title III shall apply

to the procurement of products and works referred to in Section 12(1) above exceeding the

EU threshold and to the procurement of the services listed in Annex A The provisions of this

Act are similarly applicable to the procurement of the services referred to in Annex A along

with the services referred to in Annex B provided that the value of the services referred to in

Annex A exceeds the value of the services referred to in Annex B and the total value of the contract exceeds the EU threshold

The provisions of Title II shall apply to the procurement of products and works and the ser-

vices listed in Annex A which are below the EU threshold referred to in Section 12(1) above but exceed the national threshold referred to in Section 13

The provisions of Title II shall not apply to the procurement the services listed in Annex B

However the provisions of Section 28 concerning the contract award notice obligation and di-

rect award of contract notification the provisions of Sections 37ndash38 concerning technical speci-

fications and technical specifications of environmental characteristics and the provisions of

Section 44 concerning proof provided by the tenderer shall apply to the procurement of the services listed in Annex B exceeding the EU threshold referred to in Section 12(1) above

Section 15

Provisions applicable to certain other contracts

The provisions of Title II shall not apply to contracts which fulfil the requirements of Article 346

(1)(b) of TFEU and whose value exceeds the national threshold laid down in Section 13

If the procurement of works products or services is included within the scope of application of

this Act but only a part of the procurement fulfils the requirements set in Article 346 (1)(b) of

TFEU and the procurement can be carried out on the basis of one contract only the provisions

of Title II shall not appply

Chapter 4

Calculation of the estimated value of a contract

Section 16

Calculation of the estimated value of a contract

The criterion for the calculation of the estimated value of a contract shall be the maximum to-

tal compensation excluding value added tax Calculation of the estimated value shall take ac-

count of any alternative methods of execution of the contract and option or extension clauses included in the contract

With regard to public works contracts calculation of the estimated value shall take account of

both the cost of the work and the total estimated value of the supplies necessary to execute the work and placed at the contractors disposal by the contracting authorityentity

Where the contract is being awarded at the same time in separate lots account shall be taken

of the total estimated value of all such lots when calculating the estimated value of the con-

tract Where the aggregate value of the lots exceeds the EU threshold laid down in Section 12

or the national threshold laid down in Section 13 the provisions of chapter 3 shall apply to the awarding of each lot separately

The provisions of this Act 10 shall not apply to lots whose estimated value is less than EUR

80000 for service and supply contracts and EUR 1 million for works provided that the aggre-

9

gate value of those lots does not exceed 20 of the aggregate value of the lots as a whole If

the estimated value of a work exceeds the national threshold laid down in Section 13 the con-tracting authorityentity shall act in line with the provisions laid down in Section 14(2)

The estimated value shall be the value at the time when the contracting authorityentity pub-lishes the procurement notice or otherwise commences the procurement procedure

Section 17

Calculating the estimated value of certain public service contracts

The value taken as a basis for calculating the estimated contract value shall be as follows

1) for insurance services the premiums payable and other forms of remuneration

2) for design contracts fees and commissions payable and other forms of remuneration

Section 18

Calculation of estimated value for the contract period

With regard to public supply contracts related to leasing hire rental or hire purchase of prod-

ucts the value to be taken as a basis for calculating the estimated contract value shall be as follows

1) in the case of fixed-term public contracts if that term is less than or equal to 12 months

the total estimated value for the term of the contract or if the term of the contract is greater

than 12 months the total value including the estimated residual value or

2) in the case of public contracts without a fixed term or the term of which cannot be defined the estimated monthly value multiplied by 48

In the case of public supply or service contracts which are regular in nature or which are in-

tended to be renewed within a given period the calculation of the estimated contract value shall be based on the following

1) either the total actual value of the successive contracts of the same type awarded during

the preceding 12 months or financial year adjusted to take account of the changes in quantity or value which would occur in the course of the 12 months following the initial contract or

2) the total estimated value of the successive contracts awarded during the 12 months follow-ing the first delivery or during the financial year if that is longer than 12 months

For public service contracts which do not indicate a total price the value to be taken as a basis for calculating the estimated contract value shall be as follows

1) in the case of fixed-term public contracts if that term is less than or equal to 48 months

the total estimated value for the term of the contract or

2) in the case of public contracts without a fixed term or if the term of the contract is greater than 48 months the estimated monthly value multiplied by 48

With regard to framework agreements the value to be taken into consideration in calculating

the estimated value of the contract shall be the total estimated value of all the contracts en-visaged for the term of the framework agreement

Section 19

Prohibition on artificial subdivision or combination of contracts

No public contract may be divided into lots severed or calculated using unusual methods with

the intention of excluding it from the scope of this Act A public supply or service contract may

not be combined with a works contract nor may contracts be otherwise artificially combined to prevent them coming within the scope of this Act

10

PART II

Provisions on public supply contracts primary public service contracts as defined in

Annex A and public works contracts above the EU threshold

Chapter 5

Contract award procedures

Section 20

Choosing the contract award procedure

The competition procedures for public contracts are defined in Section 3 points 9ndash13 Restrict-

ed or negotiated procedures shall be primarily used in awarding contracts Direct award of con-

tracts the competitive dialogue procedure and framework agreements may be used under the conditions laid down in Sections 22ndash27

In the restricted procedure negotiated procedure and competitive dialogue procedure the

contracting authorityentity may limit in advance the number of candidates they will invite to

tender The contracting authorityentity shall indicate in the contract notice the minimum

number of candidates they intend to invite and where appropriate the maximum number The

contracting authorityentity shall apply the minimum requirements indicated in the contract

notice and objective and non-discriminatory criteria in selecting the candidates invited to ten-der

In order to ensure genuine competition the number of candidates to be invited must be suffi-

cient in relation to the size and subject matter of the contract In the restricted procedure

negotiated procedure and competitive dialogue procedure a minimum of three candidates

shall be invited to tender unless there are fewer than three suitable candidates

The minimum number of candidates to be invited to tender shall be the number of candidates

set in advance by the contracting authorityentity If there are fewer suitable candidates the

contracting authorityentity may continue the procedure by inviting suitable candidates to

submit a tender or to commence negotiations Only those candidates which meet the minimum

criteria and have submitted a request to participate may be invited to tender

If the contracting authorityentity is of the opinion that the number of candidates is not suffi-

cient to ensure a genuine competition it may publish the original contract notice again and set

a new time limit for submission of participation requests The candidates invited to tender shall

be selected from among the candidates who have come forward on the basis of the original

and the new contract notice Publication of a new contract notice does not restrict the possible

interruption of the contract award procedure by the contracting authorityentity as laid down in Section 75

Section 21

Conduct of the negotiated procedure

The contracting authorityentity shall negotiate with the tenderers in order to adapt the ten-

ders submitted by them to the requirements set in the contract notice or invitation to tender

The purpose of the negotiations shall be to select the best tender in accordance with Section 57

The negotiations may take place in successive stages in order to reduce the number of tenders

to be discussed during the negotiations by applying the award criteria provided that the re-

course to a phased procedure and criteria applied during the negotiations are indicated in the

contract notice or invitation to tender

In order to ensure a genuine competition there must be a sufficient number of candidates provided that there is a sufficient number of tenderers and tenders that meet the criteria

The contracting authorityentity shall ensure equal treatment of all candidates and tenderers

during the negotiations and shall not provide information in a manner which may compromise the equal treatment of the participants in the competitive bidding

11

Section 22

Direct award of contracts

The contracting authorityentity may award public contracts by a direct award

1) when no tenders or suitable tenders or applications have been submitted in response to a

restricted procedure negotiated procedure or competitive dialogue procedure and the initial conditions of the contract are not substantially altered

2) when applications have been submitted in response to a restricted procedure negotiated

procedure or competitive dialogue procedure the contents of which do not correspond to the

requirements of the invitation to tender or if the tenders are not acceptable under Sections

39 41ndash43 46ndash56 60 and 62 an additional requirement shall be that the initial conditions of

the invitation to tender are not substantially altered and all tenderers which fulfil the minimum

requirements under Sections 46ndash54 and which have during the preceding procedure submitted

a tender which fulfills the format requirements of the tendering procedure shall be included in

the direct award of contracts

3) when for technical reasons or for reasons connected with the protection of exclusive rights

the contract may be awarded only to a particular supplier

4) when for reasons of urgency brought about by a crisis the time limits for the restricted pro-

cedure or negotiated procedure and the time limits for the accelerated procedure laid down in Section 30 cannot be complied with

5) when execution of the contract is absolutely necessary and the prescribed time limits can-

not be complied with for reasons of extreme urgency brought about by events unforeseeable by and independent of the contracting authorityentity

6) when the matter involves air and maritime transport services to armed forces or security

forces transferred or to be transferred abroad and such services can only be procured from

suppliers whose tenders are valid only for such a short period of time that compliance with the

set time limits is not possible

7) when the products to be acquired are manufactured purely for scientific and research pur-

poses and it is not a matter of securing the commercial viability of the products through mass production or to recover research and development costs

8) when the case involves a research and development service that has not been excluded from the scope of this Act on the basis of Section 8

9) for supplies quoted and purchased on a commodity market

10) for the purchase of supplies on particularly advantageous terms from either a supplier

winding up its business activities or from the receivers of a bankruptcy or liquidators in insol-vency proceedings an arrangement with creditors or a similar procedure

Section 23

Direct award of contracts for additional supplies

The contracting authorityentity may award contracts directly for additional supplies by the

original supplier which are intended either as a partial replacement or an extension of the pre-

vious delivery or installation provided that a change of supplier would oblige the contracting

authorityentity to acquire material with different technical characteristics which would result

in incompatibility or disproportionate technical difficulties in operation and maintenance The

validity period of such contracts and that of recurrent contracts may not exceed a maximum of

five years except in exceptional cases where the expected life cycle of the supplies equipment

or systems and the technical problems resulting from the change of supplier require a longer period of validity

In addition to the provisions laid down in subsection 1 the contracting authorityentity may

award contracts directly for additional works or services not included in the original contract

but which are to be acquired from the original supplier and have through unforeseen circum-

stances become necessary for the performance of the works or services as originally de-

scribed However such additional works or services cannot be technically or economically sep-

12

arated from the original contract without major inconvenience to the contracting authori-

tiesentities or when such works or services although separable from the performance of the

original contract are strictly necessary for the completion of the original contract In addition

the aggregate value of contracts awarded for additional works or services may not exceed

50 of the amount of the original contract

In addition to the provisions laid down in subsections 1 and 2 the contracting authorityentity

may award a contract for new works or services directly to the original supplier provided that

such works and services are in conformity with the contract awarded earlier according to the

restricted procedure The aforementioned procedure may be used on condition that the con-

tract notice for the original works or services indicates the possible use of a later direct award

of contract and provided that the estimated value of additional services or new public works

shall be taken into consideration when calculating the aggregate value of the original contract

Direct award of contract may be used only during the five years following the conclusion of the

original contract excluding exceptional conditions where the expected life cycle of the sup-

plies equipment or systems and the technical problems resulting from the change of supplier require a longer period of validity

Section 24

Competitive dialogue procedure

The contracting authorityentity may use the competitive dialogue procedure in particularly complex contracts where

1) the contracting authorityentity is not objectively able to specify the legal or financial condi-

tions of the contract or the technical solutions capable of satisfying their needs or objectives in accordance with Section 37(2)(2ndash4) and

2) the criterion used is to award the contract to the economically most advantageous tender

The contracting authorityentity shall ensure equal treatment of all tenderers and shall not

provide information in a manner that may compromise the equal treatment of the participants in competitive bidding

The contracting authorityentity may not reveal to the other participants in competitive bid-

ding solutions proposed by another tenderer or confidential information communicated during the negotiations without the agreement of the candidate or tenderer

The contracting authorityentity may pay monetary or other rewards to the participants in the competitive dialogue

Section 25

Conduct of the competitive dialogue

The contracting authorityentity shall publish a contract notice setting out their needs and re-

quirements for the contract The contracting authorityentity may further define the objective and content of the contract in a project description document

The contracting authorityentity shall initiate with the candidates selected in accordance with

the provisions of Sections 46ndash54 a dialogue the aim of which is to define one or more solu-

tions to fulfil the contract The contracting authorityentity may discuss all aspects of the con-tract with the candidates during this dialogue

The dialogue may take place in successive stages in order to reduce the number of tenders to

be discussed during the dialogue by applying the comparison criteria indicated in the invitation

to tender The contract notice or the project description shall indicate the recourse to a phased procedure and the criteria applied

The contracting authorityentity shall conclude the dialogue when it can identify the solutions

capable of realising the contract The contracting authorityentity shall inform the participants of the conclusion of the dialogue

The contracting authorityentity shall request the candidates to submit their final tenders on

the basis of the solutions presented and specified during the dialogue The tender shall contain

13

all the elements required for the performance of the project in accordance with the invitation

to tender In order to ensure a genuine competition the contracting authorityentity shall re-

quest tenders from a sufficient number of candidates provided that there is a sufficient num-ber of candidates or solutions that meet the criteria

The tenders shall be assessed on the basis of the comparison criteria indicated in the contract

notice or the project description The contracting authorityentity shall set the comparison cri-teria and award the contract in accordance with the provisions laid down in Section 57

The final tenders may be clarified and specified at the request of the contracting authori-

tyentity However such clarification or specification may not involve changes to the essential

features of the tenders or the invitations to tender in a manner that would distort competition

or have a discriminatory effect On the same conditions the contracting authorityentity may

ask the tenderer to clarify or specify aspects of or confirm commitments contained in the winning tender

Section 26

Framework agreement

The contracting authorityentit shall choose the suppliers pursuant to the framework agree-

ment by restricted or negotiated procedures The contracting authorityentity may also choose

the suppliers to the framework agreement by awarding the contract directly pursuant to the

provisions of Section 22 The suppliers to the framework agreement shall be admitted by ap-

plying the award criteria set in accordance with Chapter 8 Where a framework agreement is

concluded with several suppliers a minimum of three suppliers shall be selected unless there

are fewer suitable suppliers and admissible tenders that meet the award criteria

Contracts based on framework agreements shall be concluded with the original parties to the

agreement During the term of the agreement the parties may not make substantial amend-

ments to the terms laid down in the framework agreement The framework agreement may not be used in such a way as to distort restrict or prevent competition

The term of the framework agreement may not exceed seven years In exceptional cases the

framework agreement may be longer in duration when justified by the subject of the frame-

work agreement and taking into account the expected life cycle of the supplies equipment

and systems delivered and the technical problems that may result from the change of suppli-er

Section 27

Contracts based on a framework agreement

If the contracting authorityentity has concluded a framework agreement with a single suppli-

er contracts based on that agreement shall be awarded in accordance with the terms laid

down in the framework agreement The contracting authorityentity may ask the supplier to specify or supplement the tender in writing as needed

If the contracting authorityentity has concluded a framework agreement with several suppli-

ers contracts based on those agreements shall be awarded either by application of the terms

laid down in the framework agreement without reopening competition or where not all of the

terms are laid down in the framework agreement inviting the parties to the framework

agreement to tender in accordance with the terms of the framework agreement and where

appropriate with the terms of the call for tenders Where necessary the terms of the frame-

work agreement may be clarified or further defined

The contracting authorityentity carrying out a mini-competition to call off contracts under a

framework agreement shall ask the parties to the framework agreement capable of performing

the contract to submit a tender in writing The contracting authorityentity shall fix a time limit

which is sufficiently long to allow tenders to be submitted taking into account the subject mat-

ter of the contract the time needed to submit tenders and other similar factors The content of

the tenders shall remain confidential until the stipulated time limit of the mini-competition has

14

expired The contracting authorityentity shall choose the best tender in accordance with the

award criterion and comparison criteria indicated in the invitation to tender

Chapter 6

Mandatory publication of public contracts and time limits

Section 28

Publication requirement

When the procurement is carried out with the restricted procedure negotiated procedure or

competitive dialogue the contracting authorityentity shall provide for publication an infor-

mation notice concerning the procurement of the supplies when exceeding the EU threshold as

laid down in Section 12(1) above and the procurement of a service work and framework

agreement listed in Annex A The information notice shall include sufficient information to make a request to participate

The contracting authorityentity that has procured supplies exceeding the EU threshold as laid

down in Section 12(1) above or a service work or framework agreement listed in Annex A

shall provide a contract award notice for publication concerning the results of the award proce-

dure within 48 hours from concluding a public contract or framework agreement In addition

the contracting authorityentity shall provide a contract award notice for publication concerning

secondary service contracts which exceed the EU threshold as laid down in Section 12(1)

listed in Annex B and the suspension of the award procedure as laid down in Section 75 The

contract award notice concerning the suspension of the award procedure shall provide the rea-

sons for suspension The contract award notice concerning secondary service contracts as

listed in Annex B shall indicate whether the notice can be published The obligation to provide

a contract award notice for publication does not concern separate public contracts or direct award of contracts concluded within a framework agreement

The contracting authorityentity shall not provide information in the contract award notice the

publication of which is against the provisions laid down to protect the public interest or in par-

ticular the security of the state In addition the contracting authorityentity shall not provide

information which could endanger legally protected business secrets or harm commercial and healthy competition among tenderers

If the contracting authorityentity intends to benefit from the possibility to shorten regulated

bidding windows as laid down in Section 31(2) it shall provide a prior information notice for

publication The prior information notice shall provide the information available at the time the

notice is given on defence and security procurement that complies with the information in con-tract notice in the restricted procedure

In addition the contracting authorityentity may provide for publication a contract notice con-cerning a direct contract

More specific rules concerning the requirements for publication the means of communication

which may be used in sending the notices to be published their content publication and other

aspects of the requirement for publication shall be laid down in a Government decree

Section 29

Minimum time limits and fixing the time limits

When fixing time limits for tendering procedures the contracting authorityentity shall take

account of the quality and complexity of the procurement and the time required for drawing up

and submitting tenders Time limits shall be calculated from the date following the date on

which the contract notice is sent to be published In the case of a restricted procedure the

deadline fixed for the receipt of tenders shall be calculated from the date on which the invita-tion to tender was sent

In the case of a restricted procedure negotiated procedure and competitive dialogue the min-imum time limit for the submission of tenders shall be 37 days

15

In the case of a restricted procedure the minimum time limit for the receipt of tenders shall be

at least 40 days In the case of a negotiated procedure and competitive dialogue the deadline

fixed for the receipt of tenders shall be reasonable taking into account the subject matter and extent of the contract as well as other matters related thereto

Section 30

Accelerated procedure

In the case of restricted procedures and negotiated procedures the time limits laid down in

Section 29 above may be shortened if urgency renders them impracticable However the time

limit for the receipt of requests to participate shall be no less than 15 days or no less than 10

days if the notice is sent by electronic means In the case of the restricted procedure the min-imum time limit for the receipt of tenders shall be 10 days

Section 31

Reducing the time limits

The time limit set for the submission of participation requests can be restricted in the restrict-

ed procedure negotiated procedure and competitive dialogue by seven days if the contract

notices are sent for publication by electronic means

In restricted procedures the time limit for the receipt of tenders may be reduced to no less

than 22 days if the contracting authorityentity has sent the prior information notice for publi-

cation a minimum of 52 days and a maximum of 12 months before the date on which the con-tract notice was sent for publication

The time limit for the receipt of tenders may be reduced by an additional five days in the re-

stricted procedure provided that the contracting authorityentity offers full access to the con-

tract documents by electronic means from the date of publication of the notice specifying in the text of the notice the internet address where these documents are accessible

Section 32

Lengthening the time limits

The time limit for the receipt of tenders should be lengthened so that the bidders can familiar-

ise themselves with the information needed for drawing up the bids if the invitation to tender

documents or additional information that was requested in time have not been delivered within

the prescribed time limits or if submitting the bid requires an on-site visit or an on-site exam-ination of the documents related to the invitation to tender

Chapter 7

Invitation to tender and defining the object of the contract

Section 33

Invitation to tender

The invitation to tender shall be submitted in writing and drawn up to be sufficiently clear in

order to enable submission of commensurate and mutually comparable tenders The invitation

to tender or the contract notice shall invite suppliers to submit their tenders in writing by the

deadline

In case of a discrepancy between the invitation to tender and the contract notice the contract

notice shall apply

The contracting authorityentity may charge a reasonable fee for the invitation-to-tender doc-

uments to recover the costs arising from the exceptionally extensive scope of the documenta-tion the materials related thereto or other similar factors

7

Section 10

Procurement from or through a central purchasing body

Contracting entities which purchase products services or works that fall within the scope of

application of this Act from or through a central purchasing body shall be deemed to have complied with this Act insofar as the central purchasing body has complied with it

A central purchasing body is a contracting authorityentity or a European public body which

acquires supplies or services for the contracting entities or executes ndash on their behalf ndash public contracts or framework agreements on supplies services or works

Section 11

Reserving procurement for sheltered workshops

A contracting authorityentity may limit participation in competitive bidding to sheltered work-

shops or similar bodies or provide for such contracts to be carried out in the context of shel-

tered employment programmes where most of the employees concerned are people with disa-

bilities who by reason of the nature or seriousness of their disabilities cannot carry on occu-

pational activity under normal conditions The public contract notice must indicate that the

contract is reserved for sheltered workshops or shall be carried out in the context of sheltered

employment programmes

Chapter 3

Thresholds and implementation provisions with regard to types of procurement

Section 12

EU thresholds

With regard to thresholds applicable to the award of contracts EU thresholds which are based

on Commission Regulation (EC) 12512011 amending Directives 200417EC 200418EC and 200981EC of the European Parliament and of the Council shall be

1) EUR 400000 for public supply and service contracts and

2) EUR 5000000 for public works contracts

The European Commission shall revise the threshold values by means of a regulation every

two years in accordance with the procedure laid down in Article 68 of the Directive on Defence

and Security procurement and publish the revised thresholds in the Official Journal of the Eu-

ropean Union following the publication the thresholds laid down in subsection 1 shall be re-

placed by the new thresholds as revised by the European Commission The Ministry of Eco-

nomic Affairs and Employment must communicate without delay any changes to the EU

thresholds in the Official Journal in accordance with the revisions made by the Commission

Section 13

National thresholds

With the exception of a procurement rectification laid down in Section 85 and a prohibition to

appeal laid down in Section 104(2) this Act shall not apply to the following defence and securi-ty contracts

1) procurement of products and services whose estimated value excluding value added tax is less than EUR 100000

2) public works whose predetermined value excluding value added tax is less than EUR 500000

8

Section 14

Provisions applicable to the procurement of products and services and public works

contracts

The provisions of this Act with the exception of the provisions laid down in Title III shall apply

to the procurement of products and works referred to in Section 12(1) above exceeding the

EU threshold and to the procurement of the services listed in Annex A The provisions of this

Act are similarly applicable to the procurement of the services referred to in Annex A along

with the services referred to in Annex B provided that the value of the services referred to in

Annex A exceeds the value of the services referred to in Annex B and the total value of the contract exceeds the EU threshold

The provisions of Title II shall apply to the procurement of products and works and the ser-

vices listed in Annex A which are below the EU threshold referred to in Section 12(1) above but exceed the national threshold referred to in Section 13

The provisions of Title II shall not apply to the procurement the services listed in Annex B

However the provisions of Section 28 concerning the contract award notice obligation and di-

rect award of contract notification the provisions of Sections 37ndash38 concerning technical speci-

fications and technical specifications of environmental characteristics and the provisions of

Section 44 concerning proof provided by the tenderer shall apply to the procurement of the services listed in Annex B exceeding the EU threshold referred to in Section 12(1) above

Section 15

Provisions applicable to certain other contracts

The provisions of Title II shall not apply to contracts which fulfil the requirements of Article 346

(1)(b) of TFEU and whose value exceeds the national threshold laid down in Section 13

If the procurement of works products or services is included within the scope of application of

this Act but only a part of the procurement fulfils the requirements set in Article 346 (1)(b) of

TFEU and the procurement can be carried out on the basis of one contract only the provisions

of Title II shall not appply

Chapter 4

Calculation of the estimated value of a contract

Section 16

Calculation of the estimated value of a contract

The criterion for the calculation of the estimated value of a contract shall be the maximum to-

tal compensation excluding value added tax Calculation of the estimated value shall take ac-

count of any alternative methods of execution of the contract and option or extension clauses included in the contract

With regard to public works contracts calculation of the estimated value shall take account of

both the cost of the work and the total estimated value of the supplies necessary to execute the work and placed at the contractors disposal by the contracting authorityentity

Where the contract is being awarded at the same time in separate lots account shall be taken

of the total estimated value of all such lots when calculating the estimated value of the con-

tract Where the aggregate value of the lots exceeds the EU threshold laid down in Section 12

or the national threshold laid down in Section 13 the provisions of chapter 3 shall apply to the awarding of each lot separately

The provisions of this Act 10 shall not apply to lots whose estimated value is less than EUR

80000 for service and supply contracts and EUR 1 million for works provided that the aggre-

9

gate value of those lots does not exceed 20 of the aggregate value of the lots as a whole If

the estimated value of a work exceeds the national threshold laid down in Section 13 the con-tracting authorityentity shall act in line with the provisions laid down in Section 14(2)

The estimated value shall be the value at the time when the contracting authorityentity pub-lishes the procurement notice or otherwise commences the procurement procedure

Section 17

Calculating the estimated value of certain public service contracts

The value taken as a basis for calculating the estimated contract value shall be as follows

1) for insurance services the premiums payable and other forms of remuneration

2) for design contracts fees and commissions payable and other forms of remuneration

Section 18

Calculation of estimated value for the contract period

With regard to public supply contracts related to leasing hire rental or hire purchase of prod-

ucts the value to be taken as a basis for calculating the estimated contract value shall be as follows

1) in the case of fixed-term public contracts if that term is less than or equal to 12 months

the total estimated value for the term of the contract or if the term of the contract is greater

than 12 months the total value including the estimated residual value or

2) in the case of public contracts without a fixed term or the term of which cannot be defined the estimated monthly value multiplied by 48

In the case of public supply or service contracts which are regular in nature or which are in-

tended to be renewed within a given period the calculation of the estimated contract value shall be based on the following

1) either the total actual value of the successive contracts of the same type awarded during

the preceding 12 months or financial year adjusted to take account of the changes in quantity or value which would occur in the course of the 12 months following the initial contract or

2) the total estimated value of the successive contracts awarded during the 12 months follow-ing the first delivery or during the financial year if that is longer than 12 months

For public service contracts which do not indicate a total price the value to be taken as a basis for calculating the estimated contract value shall be as follows

1) in the case of fixed-term public contracts if that term is less than or equal to 48 months

the total estimated value for the term of the contract or

2) in the case of public contracts without a fixed term or if the term of the contract is greater than 48 months the estimated monthly value multiplied by 48

With regard to framework agreements the value to be taken into consideration in calculating

the estimated value of the contract shall be the total estimated value of all the contracts en-visaged for the term of the framework agreement

Section 19

Prohibition on artificial subdivision or combination of contracts

No public contract may be divided into lots severed or calculated using unusual methods with

the intention of excluding it from the scope of this Act A public supply or service contract may

not be combined with a works contract nor may contracts be otherwise artificially combined to prevent them coming within the scope of this Act

10

PART II

Provisions on public supply contracts primary public service contracts as defined in

Annex A and public works contracts above the EU threshold

Chapter 5

Contract award procedures

Section 20

Choosing the contract award procedure

The competition procedures for public contracts are defined in Section 3 points 9ndash13 Restrict-

ed or negotiated procedures shall be primarily used in awarding contracts Direct award of con-

tracts the competitive dialogue procedure and framework agreements may be used under the conditions laid down in Sections 22ndash27

In the restricted procedure negotiated procedure and competitive dialogue procedure the

contracting authorityentity may limit in advance the number of candidates they will invite to

tender The contracting authorityentity shall indicate in the contract notice the minimum

number of candidates they intend to invite and where appropriate the maximum number The

contracting authorityentity shall apply the minimum requirements indicated in the contract

notice and objective and non-discriminatory criteria in selecting the candidates invited to ten-der

In order to ensure genuine competition the number of candidates to be invited must be suffi-

cient in relation to the size and subject matter of the contract In the restricted procedure

negotiated procedure and competitive dialogue procedure a minimum of three candidates

shall be invited to tender unless there are fewer than three suitable candidates

The minimum number of candidates to be invited to tender shall be the number of candidates

set in advance by the contracting authorityentity If there are fewer suitable candidates the

contracting authorityentity may continue the procedure by inviting suitable candidates to

submit a tender or to commence negotiations Only those candidates which meet the minimum

criteria and have submitted a request to participate may be invited to tender

If the contracting authorityentity is of the opinion that the number of candidates is not suffi-

cient to ensure a genuine competition it may publish the original contract notice again and set

a new time limit for submission of participation requests The candidates invited to tender shall

be selected from among the candidates who have come forward on the basis of the original

and the new contract notice Publication of a new contract notice does not restrict the possible

interruption of the contract award procedure by the contracting authorityentity as laid down in Section 75

Section 21

Conduct of the negotiated procedure

The contracting authorityentity shall negotiate with the tenderers in order to adapt the ten-

ders submitted by them to the requirements set in the contract notice or invitation to tender

The purpose of the negotiations shall be to select the best tender in accordance with Section 57

The negotiations may take place in successive stages in order to reduce the number of tenders

to be discussed during the negotiations by applying the award criteria provided that the re-

course to a phased procedure and criteria applied during the negotiations are indicated in the

contract notice or invitation to tender

In order to ensure a genuine competition there must be a sufficient number of candidates provided that there is a sufficient number of tenderers and tenders that meet the criteria

The contracting authorityentity shall ensure equal treatment of all candidates and tenderers

during the negotiations and shall not provide information in a manner which may compromise the equal treatment of the participants in the competitive bidding

11

Section 22

Direct award of contracts

The contracting authorityentity may award public contracts by a direct award

1) when no tenders or suitable tenders or applications have been submitted in response to a

restricted procedure negotiated procedure or competitive dialogue procedure and the initial conditions of the contract are not substantially altered

2) when applications have been submitted in response to a restricted procedure negotiated

procedure or competitive dialogue procedure the contents of which do not correspond to the

requirements of the invitation to tender or if the tenders are not acceptable under Sections

39 41ndash43 46ndash56 60 and 62 an additional requirement shall be that the initial conditions of

the invitation to tender are not substantially altered and all tenderers which fulfil the minimum

requirements under Sections 46ndash54 and which have during the preceding procedure submitted

a tender which fulfills the format requirements of the tendering procedure shall be included in

the direct award of contracts

3) when for technical reasons or for reasons connected with the protection of exclusive rights

the contract may be awarded only to a particular supplier

4) when for reasons of urgency brought about by a crisis the time limits for the restricted pro-

cedure or negotiated procedure and the time limits for the accelerated procedure laid down in Section 30 cannot be complied with

5) when execution of the contract is absolutely necessary and the prescribed time limits can-

not be complied with for reasons of extreme urgency brought about by events unforeseeable by and independent of the contracting authorityentity

6) when the matter involves air and maritime transport services to armed forces or security

forces transferred or to be transferred abroad and such services can only be procured from

suppliers whose tenders are valid only for such a short period of time that compliance with the

set time limits is not possible

7) when the products to be acquired are manufactured purely for scientific and research pur-

poses and it is not a matter of securing the commercial viability of the products through mass production or to recover research and development costs

8) when the case involves a research and development service that has not been excluded from the scope of this Act on the basis of Section 8

9) for supplies quoted and purchased on a commodity market

10) for the purchase of supplies on particularly advantageous terms from either a supplier

winding up its business activities or from the receivers of a bankruptcy or liquidators in insol-vency proceedings an arrangement with creditors or a similar procedure

Section 23

Direct award of contracts for additional supplies

The contracting authorityentity may award contracts directly for additional supplies by the

original supplier which are intended either as a partial replacement or an extension of the pre-

vious delivery or installation provided that a change of supplier would oblige the contracting

authorityentity to acquire material with different technical characteristics which would result

in incompatibility or disproportionate technical difficulties in operation and maintenance The

validity period of such contracts and that of recurrent contracts may not exceed a maximum of

five years except in exceptional cases where the expected life cycle of the supplies equipment

or systems and the technical problems resulting from the change of supplier require a longer period of validity

In addition to the provisions laid down in subsection 1 the contracting authorityentity may

award contracts directly for additional works or services not included in the original contract

but which are to be acquired from the original supplier and have through unforeseen circum-

stances become necessary for the performance of the works or services as originally de-

scribed However such additional works or services cannot be technically or economically sep-

12

arated from the original contract without major inconvenience to the contracting authori-

tiesentities or when such works or services although separable from the performance of the

original contract are strictly necessary for the completion of the original contract In addition

the aggregate value of contracts awarded for additional works or services may not exceed

50 of the amount of the original contract

In addition to the provisions laid down in subsections 1 and 2 the contracting authorityentity

may award a contract for new works or services directly to the original supplier provided that

such works and services are in conformity with the contract awarded earlier according to the

restricted procedure The aforementioned procedure may be used on condition that the con-

tract notice for the original works or services indicates the possible use of a later direct award

of contract and provided that the estimated value of additional services or new public works

shall be taken into consideration when calculating the aggregate value of the original contract

Direct award of contract may be used only during the five years following the conclusion of the

original contract excluding exceptional conditions where the expected life cycle of the sup-

plies equipment or systems and the technical problems resulting from the change of supplier require a longer period of validity

Section 24

Competitive dialogue procedure

The contracting authorityentity may use the competitive dialogue procedure in particularly complex contracts where

1) the contracting authorityentity is not objectively able to specify the legal or financial condi-

tions of the contract or the technical solutions capable of satisfying their needs or objectives in accordance with Section 37(2)(2ndash4) and

2) the criterion used is to award the contract to the economically most advantageous tender

The contracting authorityentity shall ensure equal treatment of all tenderers and shall not

provide information in a manner that may compromise the equal treatment of the participants in competitive bidding

The contracting authorityentity may not reveal to the other participants in competitive bid-

ding solutions proposed by another tenderer or confidential information communicated during the negotiations without the agreement of the candidate or tenderer

The contracting authorityentity may pay monetary or other rewards to the participants in the competitive dialogue

Section 25

Conduct of the competitive dialogue

The contracting authorityentity shall publish a contract notice setting out their needs and re-

quirements for the contract The contracting authorityentity may further define the objective and content of the contract in a project description document

The contracting authorityentity shall initiate with the candidates selected in accordance with

the provisions of Sections 46ndash54 a dialogue the aim of which is to define one or more solu-

tions to fulfil the contract The contracting authorityentity may discuss all aspects of the con-tract with the candidates during this dialogue

The dialogue may take place in successive stages in order to reduce the number of tenders to

be discussed during the dialogue by applying the comparison criteria indicated in the invitation

to tender The contract notice or the project description shall indicate the recourse to a phased procedure and the criteria applied

The contracting authorityentity shall conclude the dialogue when it can identify the solutions

capable of realising the contract The contracting authorityentity shall inform the participants of the conclusion of the dialogue

The contracting authorityentity shall request the candidates to submit their final tenders on

the basis of the solutions presented and specified during the dialogue The tender shall contain

13

all the elements required for the performance of the project in accordance with the invitation

to tender In order to ensure a genuine competition the contracting authorityentity shall re-

quest tenders from a sufficient number of candidates provided that there is a sufficient num-ber of candidates or solutions that meet the criteria

The tenders shall be assessed on the basis of the comparison criteria indicated in the contract

notice or the project description The contracting authorityentity shall set the comparison cri-teria and award the contract in accordance with the provisions laid down in Section 57

The final tenders may be clarified and specified at the request of the contracting authori-

tyentity However such clarification or specification may not involve changes to the essential

features of the tenders or the invitations to tender in a manner that would distort competition

or have a discriminatory effect On the same conditions the contracting authorityentity may

ask the tenderer to clarify or specify aspects of or confirm commitments contained in the winning tender

Section 26

Framework agreement

The contracting authorityentit shall choose the suppliers pursuant to the framework agree-

ment by restricted or negotiated procedures The contracting authorityentity may also choose

the suppliers to the framework agreement by awarding the contract directly pursuant to the

provisions of Section 22 The suppliers to the framework agreement shall be admitted by ap-

plying the award criteria set in accordance with Chapter 8 Where a framework agreement is

concluded with several suppliers a minimum of three suppliers shall be selected unless there

are fewer suitable suppliers and admissible tenders that meet the award criteria

Contracts based on framework agreements shall be concluded with the original parties to the

agreement During the term of the agreement the parties may not make substantial amend-

ments to the terms laid down in the framework agreement The framework agreement may not be used in such a way as to distort restrict or prevent competition

The term of the framework agreement may not exceed seven years In exceptional cases the

framework agreement may be longer in duration when justified by the subject of the frame-

work agreement and taking into account the expected life cycle of the supplies equipment

and systems delivered and the technical problems that may result from the change of suppli-er

Section 27

Contracts based on a framework agreement

If the contracting authorityentity has concluded a framework agreement with a single suppli-

er contracts based on that agreement shall be awarded in accordance with the terms laid

down in the framework agreement The contracting authorityentity may ask the supplier to specify or supplement the tender in writing as needed

If the contracting authorityentity has concluded a framework agreement with several suppli-

ers contracts based on those agreements shall be awarded either by application of the terms

laid down in the framework agreement without reopening competition or where not all of the

terms are laid down in the framework agreement inviting the parties to the framework

agreement to tender in accordance with the terms of the framework agreement and where

appropriate with the terms of the call for tenders Where necessary the terms of the frame-

work agreement may be clarified or further defined

The contracting authorityentity carrying out a mini-competition to call off contracts under a

framework agreement shall ask the parties to the framework agreement capable of performing

the contract to submit a tender in writing The contracting authorityentity shall fix a time limit

which is sufficiently long to allow tenders to be submitted taking into account the subject mat-

ter of the contract the time needed to submit tenders and other similar factors The content of

the tenders shall remain confidential until the stipulated time limit of the mini-competition has

14

expired The contracting authorityentity shall choose the best tender in accordance with the

award criterion and comparison criteria indicated in the invitation to tender

Chapter 6

Mandatory publication of public contracts and time limits

Section 28

Publication requirement

When the procurement is carried out with the restricted procedure negotiated procedure or

competitive dialogue the contracting authorityentity shall provide for publication an infor-

mation notice concerning the procurement of the supplies when exceeding the EU threshold as

laid down in Section 12(1) above and the procurement of a service work and framework

agreement listed in Annex A The information notice shall include sufficient information to make a request to participate

The contracting authorityentity that has procured supplies exceeding the EU threshold as laid

down in Section 12(1) above or a service work or framework agreement listed in Annex A

shall provide a contract award notice for publication concerning the results of the award proce-

dure within 48 hours from concluding a public contract or framework agreement In addition

the contracting authorityentity shall provide a contract award notice for publication concerning

secondary service contracts which exceed the EU threshold as laid down in Section 12(1)

listed in Annex B and the suspension of the award procedure as laid down in Section 75 The

contract award notice concerning the suspension of the award procedure shall provide the rea-

sons for suspension The contract award notice concerning secondary service contracts as

listed in Annex B shall indicate whether the notice can be published The obligation to provide

a contract award notice for publication does not concern separate public contracts or direct award of contracts concluded within a framework agreement

The contracting authorityentity shall not provide information in the contract award notice the

publication of which is against the provisions laid down to protect the public interest or in par-

ticular the security of the state In addition the contracting authorityentity shall not provide

information which could endanger legally protected business secrets or harm commercial and healthy competition among tenderers

If the contracting authorityentity intends to benefit from the possibility to shorten regulated

bidding windows as laid down in Section 31(2) it shall provide a prior information notice for

publication The prior information notice shall provide the information available at the time the

notice is given on defence and security procurement that complies with the information in con-tract notice in the restricted procedure

In addition the contracting authorityentity may provide for publication a contract notice con-cerning a direct contract

More specific rules concerning the requirements for publication the means of communication

which may be used in sending the notices to be published their content publication and other

aspects of the requirement for publication shall be laid down in a Government decree

Section 29

Minimum time limits and fixing the time limits

When fixing time limits for tendering procedures the contracting authorityentity shall take

account of the quality and complexity of the procurement and the time required for drawing up

and submitting tenders Time limits shall be calculated from the date following the date on

which the contract notice is sent to be published In the case of a restricted procedure the

deadline fixed for the receipt of tenders shall be calculated from the date on which the invita-tion to tender was sent

In the case of a restricted procedure negotiated procedure and competitive dialogue the min-imum time limit for the submission of tenders shall be 37 days

15

In the case of a restricted procedure the minimum time limit for the receipt of tenders shall be

at least 40 days In the case of a negotiated procedure and competitive dialogue the deadline

fixed for the receipt of tenders shall be reasonable taking into account the subject matter and extent of the contract as well as other matters related thereto

Section 30

Accelerated procedure

In the case of restricted procedures and negotiated procedures the time limits laid down in

Section 29 above may be shortened if urgency renders them impracticable However the time

limit for the receipt of requests to participate shall be no less than 15 days or no less than 10

days if the notice is sent by electronic means In the case of the restricted procedure the min-imum time limit for the receipt of tenders shall be 10 days

Section 31

Reducing the time limits

The time limit set for the submission of participation requests can be restricted in the restrict-

ed procedure negotiated procedure and competitive dialogue by seven days if the contract

notices are sent for publication by electronic means

In restricted procedures the time limit for the receipt of tenders may be reduced to no less

than 22 days if the contracting authorityentity has sent the prior information notice for publi-

cation a minimum of 52 days and a maximum of 12 months before the date on which the con-tract notice was sent for publication

The time limit for the receipt of tenders may be reduced by an additional five days in the re-

stricted procedure provided that the contracting authorityentity offers full access to the con-

tract documents by electronic means from the date of publication of the notice specifying in the text of the notice the internet address where these documents are accessible

Section 32

Lengthening the time limits

The time limit for the receipt of tenders should be lengthened so that the bidders can familiar-

ise themselves with the information needed for drawing up the bids if the invitation to tender

documents or additional information that was requested in time have not been delivered within

the prescribed time limits or if submitting the bid requires an on-site visit or an on-site exam-ination of the documents related to the invitation to tender

Chapter 7

Invitation to tender and defining the object of the contract

Section 33

Invitation to tender

The invitation to tender shall be submitted in writing and drawn up to be sufficiently clear in

order to enable submission of commensurate and mutually comparable tenders The invitation

to tender or the contract notice shall invite suppliers to submit their tenders in writing by the

deadline

In case of a discrepancy between the invitation to tender and the contract notice the contract

notice shall apply

The contracting authorityentity may charge a reasonable fee for the invitation-to-tender doc-

uments to recover the costs arising from the exceptionally extensive scope of the documenta-tion the materials related thereto or other similar factors

8

Section 14

Provisions applicable to the procurement of products and services and public works

contracts

The provisions of this Act with the exception of the provisions laid down in Title III shall apply

to the procurement of products and works referred to in Section 12(1) above exceeding the

EU threshold and to the procurement of the services listed in Annex A The provisions of this

Act are similarly applicable to the procurement of the services referred to in Annex A along

with the services referred to in Annex B provided that the value of the services referred to in

Annex A exceeds the value of the services referred to in Annex B and the total value of the contract exceeds the EU threshold

The provisions of Title II shall apply to the procurement of products and works and the ser-

vices listed in Annex A which are below the EU threshold referred to in Section 12(1) above but exceed the national threshold referred to in Section 13

The provisions of Title II shall not apply to the procurement the services listed in Annex B

However the provisions of Section 28 concerning the contract award notice obligation and di-

rect award of contract notification the provisions of Sections 37ndash38 concerning technical speci-

fications and technical specifications of environmental characteristics and the provisions of

Section 44 concerning proof provided by the tenderer shall apply to the procurement of the services listed in Annex B exceeding the EU threshold referred to in Section 12(1) above

Section 15

Provisions applicable to certain other contracts

The provisions of Title II shall not apply to contracts which fulfil the requirements of Article 346

(1)(b) of TFEU and whose value exceeds the national threshold laid down in Section 13

If the procurement of works products or services is included within the scope of application of

this Act but only a part of the procurement fulfils the requirements set in Article 346 (1)(b) of

TFEU and the procurement can be carried out on the basis of one contract only the provisions

of Title II shall not appply

Chapter 4

Calculation of the estimated value of a contract

Section 16

Calculation of the estimated value of a contract

The criterion for the calculation of the estimated value of a contract shall be the maximum to-

tal compensation excluding value added tax Calculation of the estimated value shall take ac-

count of any alternative methods of execution of the contract and option or extension clauses included in the contract

With regard to public works contracts calculation of the estimated value shall take account of

both the cost of the work and the total estimated value of the supplies necessary to execute the work and placed at the contractors disposal by the contracting authorityentity

Where the contract is being awarded at the same time in separate lots account shall be taken

of the total estimated value of all such lots when calculating the estimated value of the con-

tract Where the aggregate value of the lots exceeds the EU threshold laid down in Section 12

or the national threshold laid down in Section 13 the provisions of chapter 3 shall apply to the awarding of each lot separately

The provisions of this Act 10 shall not apply to lots whose estimated value is less than EUR

80000 for service and supply contracts and EUR 1 million for works provided that the aggre-

9

gate value of those lots does not exceed 20 of the aggregate value of the lots as a whole If

the estimated value of a work exceeds the national threshold laid down in Section 13 the con-tracting authorityentity shall act in line with the provisions laid down in Section 14(2)

The estimated value shall be the value at the time when the contracting authorityentity pub-lishes the procurement notice or otherwise commences the procurement procedure

Section 17

Calculating the estimated value of certain public service contracts

The value taken as a basis for calculating the estimated contract value shall be as follows

1) for insurance services the premiums payable and other forms of remuneration

2) for design contracts fees and commissions payable and other forms of remuneration

Section 18

Calculation of estimated value for the contract period

With regard to public supply contracts related to leasing hire rental or hire purchase of prod-

ucts the value to be taken as a basis for calculating the estimated contract value shall be as follows

1) in the case of fixed-term public contracts if that term is less than or equal to 12 months

the total estimated value for the term of the contract or if the term of the contract is greater

than 12 months the total value including the estimated residual value or

2) in the case of public contracts without a fixed term or the term of which cannot be defined the estimated monthly value multiplied by 48

In the case of public supply or service contracts which are regular in nature or which are in-

tended to be renewed within a given period the calculation of the estimated contract value shall be based on the following

1) either the total actual value of the successive contracts of the same type awarded during

the preceding 12 months or financial year adjusted to take account of the changes in quantity or value which would occur in the course of the 12 months following the initial contract or

2) the total estimated value of the successive contracts awarded during the 12 months follow-ing the first delivery or during the financial year if that is longer than 12 months

For public service contracts which do not indicate a total price the value to be taken as a basis for calculating the estimated contract value shall be as follows

1) in the case of fixed-term public contracts if that term is less than or equal to 48 months

the total estimated value for the term of the contract or

2) in the case of public contracts without a fixed term or if the term of the contract is greater than 48 months the estimated monthly value multiplied by 48

With regard to framework agreements the value to be taken into consideration in calculating

the estimated value of the contract shall be the total estimated value of all the contracts en-visaged for the term of the framework agreement

Section 19

Prohibition on artificial subdivision or combination of contracts

No public contract may be divided into lots severed or calculated using unusual methods with

the intention of excluding it from the scope of this Act A public supply or service contract may

not be combined with a works contract nor may contracts be otherwise artificially combined to prevent them coming within the scope of this Act

10

PART II

Provisions on public supply contracts primary public service contracts as defined in

Annex A and public works contracts above the EU threshold

Chapter 5

Contract award procedures

Section 20

Choosing the contract award procedure

The competition procedures for public contracts are defined in Section 3 points 9ndash13 Restrict-

ed or negotiated procedures shall be primarily used in awarding contracts Direct award of con-

tracts the competitive dialogue procedure and framework agreements may be used under the conditions laid down in Sections 22ndash27

In the restricted procedure negotiated procedure and competitive dialogue procedure the

contracting authorityentity may limit in advance the number of candidates they will invite to

tender The contracting authorityentity shall indicate in the contract notice the minimum

number of candidates they intend to invite and where appropriate the maximum number The

contracting authorityentity shall apply the minimum requirements indicated in the contract

notice and objective and non-discriminatory criteria in selecting the candidates invited to ten-der

In order to ensure genuine competition the number of candidates to be invited must be suffi-

cient in relation to the size and subject matter of the contract In the restricted procedure

negotiated procedure and competitive dialogue procedure a minimum of three candidates

shall be invited to tender unless there are fewer than three suitable candidates

The minimum number of candidates to be invited to tender shall be the number of candidates

set in advance by the contracting authorityentity If there are fewer suitable candidates the

contracting authorityentity may continue the procedure by inviting suitable candidates to

submit a tender or to commence negotiations Only those candidates which meet the minimum

criteria and have submitted a request to participate may be invited to tender

If the contracting authorityentity is of the opinion that the number of candidates is not suffi-

cient to ensure a genuine competition it may publish the original contract notice again and set

a new time limit for submission of participation requests The candidates invited to tender shall

be selected from among the candidates who have come forward on the basis of the original

and the new contract notice Publication of a new contract notice does not restrict the possible

interruption of the contract award procedure by the contracting authorityentity as laid down in Section 75

Section 21

Conduct of the negotiated procedure

The contracting authorityentity shall negotiate with the tenderers in order to adapt the ten-

ders submitted by them to the requirements set in the contract notice or invitation to tender

The purpose of the negotiations shall be to select the best tender in accordance with Section 57

The negotiations may take place in successive stages in order to reduce the number of tenders

to be discussed during the negotiations by applying the award criteria provided that the re-

course to a phased procedure and criteria applied during the negotiations are indicated in the

contract notice or invitation to tender

In order to ensure a genuine competition there must be a sufficient number of candidates provided that there is a sufficient number of tenderers and tenders that meet the criteria

The contracting authorityentity shall ensure equal treatment of all candidates and tenderers

during the negotiations and shall not provide information in a manner which may compromise the equal treatment of the participants in the competitive bidding

11

Section 22

Direct award of contracts

The contracting authorityentity may award public contracts by a direct award

1) when no tenders or suitable tenders or applications have been submitted in response to a

restricted procedure negotiated procedure or competitive dialogue procedure and the initial conditions of the contract are not substantially altered

2) when applications have been submitted in response to a restricted procedure negotiated

procedure or competitive dialogue procedure the contents of which do not correspond to the

requirements of the invitation to tender or if the tenders are not acceptable under Sections

39 41ndash43 46ndash56 60 and 62 an additional requirement shall be that the initial conditions of

the invitation to tender are not substantially altered and all tenderers which fulfil the minimum

requirements under Sections 46ndash54 and which have during the preceding procedure submitted

a tender which fulfills the format requirements of the tendering procedure shall be included in

the direct award of contracts

3) when for technical reasons or for reasons connected with the protection of exclusive rights

the contract may be awarded only to a particular supplier

4) when for reasons of urgency brought about by a crisis the time limits for the restricted pro-

cedure or negotiated procedure and the time limits for the accelerated procedure laid down in Section 30 cannot be complied with

5) when execution of the contract is absolutely necessary and the prescribed time limits can-

not be complied with for reasons of extreme urgency brought about by events unforeseeable by and independent of the contracting authorityentity

6) when the matter involves air and maritime transport services to armed forces or security

forces transferred or to be transferred abroad and such services can only be procured from

suppliers whose tenders are valid only for such a short period of time that compliance with the

set time limits is not possible

7) when the products to be acquired are manufactured purely for scientific and research pur-

poses and it is not a matter of securing the commercial viability of the products through mass production or to recover research and development costs

8) when the case involves a research and development service that has not been excluded from the scope of this Act on the basis of Section 8

9) for supplies quoted and purchased on a commodity market

10) for the purchase of supplies on particularly advantageous terms from either a supplier

winding up its business activities or from the receivers of a bankruptcy or liquidators in insol-vency proceedings an arrangement with creditors or a similar procedure

Section 23

Direct award of contracts for additional supplies

The contracting authorityentity may award contracts directly for additional supplies by the

original supplier which are intended either as a partial replacement or an extension of the pre-

vious delivery or installation provided that a change of supplier would oblige the contracting

authorityentity to acquire material with different technical characteristics which would result

in incompatibility or disproportionate technical difficulties in operation and maintenance The

validity period of such contracts and that of recurrent contracts may not exceed a maximum of

five years except in exceptional cases where the expected life cycle of the supplies equipment

or systems and the technical problems resulting from the change of supplier require a longer period of validity

In addition to the provisions laid down in subsection 1 the contracting authorityentity may

award contracts directly for additional works or services not included in the original contract

but which are to be acquired from the original supplier and have through unforeseen circum-

stances become necessary for the performance of the works or services as originally de-

scribed However such additional works or services cannot be technically or economically sep-

12

arated from the original contract without major inconvenience to the contracting authori-

tiesentities or when such works or services although separable from the performance of the

original contract are strictly necessary for the completion of the original contract In addition

the aggregate value of contracts awarded for additional works or services may not exceed

50 of the amount of the original contract

In addition to the provisions laid down in subsections 1 and 2 the contracting authorityentity

may award a contract for new works or services directly to the original supplier provided that

such works and services are in conformity with the contract awarded earlier according to the

restricted procedure The aforementioned procedure may be used on condition that the con-

tract notice for the original works or services indicates the possible use of a later direct award

of contract and provided that the estimated value of additional services or new public works

shall be taken into consideration when calculating the aggregate value of the original contract

Direct award of contract may be used only during the five years following the conclusion of the

original contract excluding exceptional conditions where the expected life cycle of the sup-

plies equipment or systems and the technical problems resulting from the change of supplier require a longer period of validity

Section 24

Competitive dialogue procedure

The contracting authorityentity may use the competitive dialogue procedure in particularly complex contracts where

1) the contracting authorityentity is not objectively able to specify the legal or financial condi-

tions of the contract or the technical solutions capable of satisfying their needs or objectives in accordance with Section 37(2)(2ndash4) and

2) the criterion used is to award the contract to the economically most advantageous tender

The contracting authorityentity shall ensure equal treatment of all tenderers and shall not

provide information in a manner that may compromise the equal treatment of the participants in competitive bidding

The contracting authorityentity may not reveal to the other participants in competitive bid-

ding solutions proposed by another tenderer or confidential information communicated during the negotiations without the agreement of the candidate or tenderer

The contracting authorityentity may pay monetary or other rewards to the participants in the competitive dialogue

Section 25

Conduct of the competitive dialogue

The contracting authorityentity shall publish a contract notice setting out their needs and re-

quirements for the contract The contracting authorityentity may further define the objective and content of the contract in a project description document

The contracting authorityentity shall initiate with the candidates selected in accordance with

the provisions of Sections 46ndash54 a dialogue the aim of which is to define one or more solu-

tions to fulfil the contract The contracting authorityentity may discuss all aspects of the con-tract with the candidates during this dialogue

The dialogue may take place in successive stages in order to reduce the number of tenders to

be discussed during the dialogue by applying the comparison criteria indicated in the invitation

to tender The contract notice or the project description shall indicate the recourse to a phased procedure and the criteria applied

The contracting authorityentity shall conclude the dialogue when it can identify the solutions

capable of realising the contract The contracting authorityentity shall inform the participants of the conclusion of the dialogue

The contracting authorityentity shall request the candidates to submit their final tenders on

the basis of the solutions presented and specified during the dialogue The tender shall contain

13

all the elements required for the performance of the project in accordance with the invitation

to tender In order to ensure a genuine competition the contracting authorityentity shall re-

quest tenders from a sufficient number of candidates provided that there is a sufficient num-ber of candidates or solutions that meet the criteria

The tenders shall be assessed on the basis of the comparison criteria indicated in the contract

notice or the project description The contracting authorityentity shall set the comparison cri-teria and award the contract in accordance with the provisions laid down in Section 57

The final tenders may be clarified and specified at the request of the contracting authori-

tyentity However such clarification or specification may not involve changes to the essential

features of the tenders or the invitations to tender in a manner that would distort competition

or have a discriminatory effect On the same conditions the contracting authorityentity may

ask the tenderer to clarify or specify aspects of or confirm commitments contained in the winning tender

Section 26

Framework agreement

The contracting authorityentit shall choose the suppliers pursuant to the framework agree-

ment by restricted or negotiated procedures The contracting authorityentity may also choose

the suppliers to the framework agreement by awarding the contract directly pursuant to the

provisions of Section 22 The suppliers to the framework agreement shall be admitted by ap-

plying the award criteria set in accordance with Chapter 8 Where a framework agreement is

concluded with several suppliers a minimum of three suppliers shall be selected unless there

are fewer suitable suppliers and admissible tenders that meet the award criteria

Contracts based on framework agreements shall be concluded with the original parties to the

agreement During the term of the agreement the parties may not make substantial amend-

ments to the terms laid down in the framework agreement The framework agreement may not be used in such a way as to distort restrict or prevent competition

The term of the framework agreement may not exceed seven years In exceptional cases the

framework agreement may be longer in duration when justified by the subject of the frame-

work agreement and taking into account the expected life cycle of the supplies equipment

and systems delivered and the technical problems that may result from the change of suppli-er

Section 27

Contracts based on a framework agreement

If the contracting authorityentity has concluded a framework agreement with a single suppli-

er contracts based on that agreement shall be awarded in accordance with the terms laid

down in the framework agreement The contracting authorityentity may ask the supplier to specify or supplement the tender in writing as needed

If the contracting authorityentity has concluded a framework agreement with several suppli-

ers contracts based on those agreements shall be awarded either by application of the terms

laid down in the framework agreement without reopening competition or where not all of the

terms are laid down in the framework agreement inviting the parties to the framework

agreement to tender in accordance with the terms of the framework agreement and where

appropriate with the terms of the call for tenders Where necessary the terms of the frame-

work agreement may be clarified or further defined

The contracting authorityentity carrying out a mini-competition to call off contracts under a

framework agreement shall ask the parties to the framework agreement capable of performing

the contract to submit a tender in writing The contracting authorityentity shall fix a time limit

which is sufficiently long to allow tenders to be submitted taking into account the subject mat-

ter of the contract the time needed to submit tenders and other similar factors The content of

the tenders shall remain confidential until the stipulated time limit of the mini-competition has

14

expired The contracting authorityentity shall choose the best tender in accordance with the

award criterion and comparison criteria indicated in the invitation to tender

Chapter 6

Mandatory publication of public contracts and time limits

Section 28

Publication requirement

When the procurement is carried out with the restricted procedure negotiated procedure or

competitive dialogue the contracting authorityentity shall provide for publication an infor-

mation notice concerning the procurement of the supplies when exceeding the EU threshold as

laid down in Section 12(1) above and the procurement of a service work and framework

agreement listed in Annex A The information notice shall include sufficient information to make a request to participate

The contracting authorityentity that has procured supplies exceeding the EU threshold as laid

down in Section 12(1) above or a service work or framework agreement listed in Annex A

shall provide a contract award notice for publication concerning the results of the award proce-

dure within 48 hours from concluding a public contract or framework agreement In addition

the contracting authorityentity shall provide a contract award notice for publication concerning

secondary service contracts which exceed the EU threshold as laid down in Section 12(1)

listed in Annex B and the suspension of the award procedure as laid down in Section 75 The

contract award notice concerning the suspension of the award procedure shall provide the rea-

sons for suspension The contract award notice concerning secondary service contracts as

listed in Annex B shall indicate whether the notice can be published The obligation to provide

a contract award notice for publication does not concern separate public contracts or direct award of contracts concluded within a framework agreement

The contracting authorityentity shall not provide information in the contract award notice the

publication of which is against the provisions laid down to protect the public interest or in par-

ticular the security of the state In addition the contracting authorityentity shall not provide

information which could endanger legally protected business secrets or harm commercial and healthy competition among tenderers

If the contracting authorityentity intends to benefit from the possibility to shorten regulated

bidding windows as laid down in Section 31(2) it shall provide a prior information notice for

publication The prior information notice shall provide the information available at the time the

notice is given on defence and security procurement that complies with the information in con-tract notice in the restricted procedure

In addition the contracting authorityentity may provide for publication a contract notice con-cerning a direct contract

More specific rules concerning the requirements for publication the means of communication

which may be used in sending the notices to be published their content publication and other

aspects of the requirement for publication shall be laid down in a Government decree

Section 29

Minimum time limits and fixing the time limits

When fixing time limits for tendering procedures the contracting authorityentity shall take

account of the quality and complexity of the procurement and the time required for drawing up

and submitting tenders Time limits shall be calculated from the date following the date on

which the contract notice is sent to be published In the case of a restricted procedure the

deadline fixed for the receipt of tenders shall be calculated from the date on which the invita-tion to tender was sent

In the case of a restricted procedure negotiated procedure and competitive dialogue the min-imum time limit for the submission of tenders shall be 37 days

15

In the case of a restricted procedure the minimum time limit for the receipt of tenders shall be

at least 40 days In the case of a negotiated procedure and competitive dialogue the deadline

fixed for the receipt of tenders shall be reasonable taking into account the subject matter and extent of the contract as well as other matters related thereto

Section 30

Accelerated procedure

In the case of restricted procedures and negotiated procedures the time limits laid down in

Section 29 above may be shortened if urgency renders them impracticable However the time

limit for the receipt of requests to participate shall be no less than 15 days or no less than 10

days if the notice is sent by electronic means In the case of the restricted procedure the min-imum time limit for the receipt of tenders shall be 10 days

Section 31

Reducing the time limits

The time limit set for the submission of participation requests can be restricted in the restrict-

ed procedure negotiated procedure and competitive dialogue by seven days if the contract

notices are sent for publication by electronic means

In restricted procedures the time limit for the receipt of tenders may be reduced to no less

than 22 days if the contracting authorityentity has sent the prior information notice for publi-

cation a minimum of 52 days and a maximum of 12 months before the date on which the con-tract notice was sent for publication

The time limit for the receipt of tenders may be reduced by an additional five days in the re-

stricted procedure provided that the contracting authorityentity offers full access to the con-

tract documents by electronic means from the date of publication of the notice specifying in the text of the notice the internet address where these documents are accessible

Section 32

Lengthening the time limits

The time limit for the receipt of tenders should be lengthened so that the bidders can familiar-

ise themselves with the information needed for drawing up the bids if the invitation to tender

documents or additional information that was requested in time have not been delivered within

the prescribed time limits or if submitting the bid requires an on-site visit or an on-site exam-ination of the documents related to the invitation to tender

Chapter 7

Invitation to tender and defining the object of the contract

Section 33

Invitation to tender

The invitation to tender shall be submitted in writing and drawn up to be sufficiently clear in

order to enable submission of commensurate and mutually comparable tenders The invitation

to tender or the contract notice shall invite suppliers to submit their tenders in writing by the

deadline

In case of a discrepancy between the invitation to tender and the contract notice the contract

notice shall apply

The contracting authorityentity may charge a reasonable fee for the invitation-to-tender doc-

uments to recover the costs arising from the exceptionally extensive scope of the documenta-tion the materials related thereto or other similar factors

9

gate value of those lots does not exceed 20 of the aggregate value of the lots as a whole If

the estimated value of a work exceeds the national threshold laid down in Section 13 the con-tracting authorityentity shall act in line with the provisions laid down in Section 14(2)

The estimated value shall be the value at the time when the contracting authorityentity pub-lishes the procurement notice or otherwise commences the procurement procedure

Section 17

Calculating the estimated value of certain public service contracts

The value taken as a basis for calculating the estimated contract value shall be as follows

1) for insurance services the premiums payable and other forms of remuneration

2) for design contracts fees and commissions payable and other forms of remuneration

Section 18

Calculation of estimated value for the contract period

With regard to public supply contracts related to leasing hire rental or hire purchase of prod-

ucts the value to be taken as a basis for calculating the estimated contract value shall be as follows

1) in the case of fixed-term public contracts if that term is less than or equal to 12 months

the total estimated value for the term of the contract or if the term of the contract is greater

than 12 months the total value including the estimated residual value or

2) in the case of public contracts without a fixed term or the term of which cannot be defined the estimated monthly value multiplied by 48

In the case of public supply or service contracts which are regular in nature or which are in-

tended to be renewed within a given period the calculation of the estimated contract value shall be based on the following

1) either the total actual value of the successive contracts of the same type awarded during

the preceding 12 months or financial year adjusted to take account of the changes in quantity or value which would occur in the course of the 12 months following the initial contract or

2) the total estimated value of the successive contracts awarded during the 12 months follow-ing the first delivery or during the financial year if that is longer than 12 months

For public service contracts which do not indicate a total price the value to be taken as a basis for calculating the estimated contract value shall be as follows

1) in the case of fixed-term public contracts if that term is less than or equal to 48 months

the total estimated value for the term of the contract or

2) in the case of public contracts without a fixed term or if the term of the contract is greater than 48 months the estimated monthly value multiplied by 48

With regard to framework agreements the value to be taken into consideration in calculating

the estimated value of the contract shall be the total estimated value of all the contracts en-visaged for the term of the framework agreement

Section 19

Prohibition on artificial subdivision or combination of contracts

No public contract may be divided into lots severed or calculated using unusual methods with

the intention of excluding it from the scope of this Act A public supply or service contract may

not be combined with a works contract nor may contracts be otherwise artificially combined to prevent them coming within the scope of this Act

10

PART II

Provisions on public supply contracts primary public service contracts as defined in

Annex A and public works contracts above the EU threshold

Chapter 5

Contract award procedures

Section 20

Choosing the contract award procedure

The competition procedures for public contracts are defined in Section 3 points 9ndash13 Restrict-

ed or negotiated procedures shall be primarily used in awarding contracts Direct award of con-

tracts the competitive dialogue procedure and framework agreements may be used under the conditions laid down in Sections 22ndash27

In the restricted procedure negotiated procedure and competitive dialogue procedure the

contracting authorityentity may limit in advance the number of candidates they will invite to

tender The contracting authorityentity shall indicate in the contract notice the minimum

number of candidates they intend to invite and where appropriate the maximum number The

contracting authorityentity shall apply the minimum requirements indicated in the contract

notice and objective and non-discriminatory criteria in selecting the candidates invited to ten-der

In order to ensure genuine competition the number of candidates to be invited must be suffi-

cient in relation to the size and subject matter of the contract In the restricted procedure

negotiated procedure and competitive dialogue procedure a minimum of three candidates

shall be invited to tender unless there are fewer than three suitable candidates

The minimum number of candidates to be invited to tender shall be the number of candidates

set in advance by the contracting authorityentity If there are fewer suitable candidates the

contracting authorityentity may continue the procedure by inviting suitable candidates to

submit a tender or to commence negotiations Only those candidates which meet the minimum

criteria and have submitted a request to participate may be invited to tender

If the contracting authorityentity is of the opinion that the number of candidates is not suffi-

cient to ensure a genuine competition it may publish the original contract notice again and set

a new time limit for submission of participation requests The candidates invited to tender shall

be selected from among the candidates who have come forward on the basis of the original

and the new contract notice Publication of a new contract notice does not restrict the possible

interruption of the contract award procedure by the contracting authorityentity as laid down in Section 75

Section 21

Conduct of the negotiated procedure

The contracting authorityentity shall negotiate with the tenderers in order to adapt the ten-

ders submitted by them to the requirements set in the contract notice or invitation to tender

The purpose of the negotiations shall be to select the best tender in accordance with Section 57

The negotiations may take place in successive stages in order to reduce the number of tenders

to be discussed during the negotiations by applying the award criteria provided that the re-

course to a phased procedure and criteria applied during the negotiations are indicated in the

contract notice or invitation to tender

In order to ensure a genuine competition there must be a sufficient number of candidates provided that there is a sufficient number of tenderers and tenders that meet the criteria

The contracting authorityentity shall ensure equal treatment of all candidates and tenderers

during the negotiations and shall not provide information in a manner which may compromise the equal treatment of the participants in the competitive bidding

11

Section 22

Direct award of contracts

The contracting authorityentity may award public contracts by a direct award

1) when no tenders or suitable tenders or applications have been submitted in response to a

restricted procedure negotiated procedure or competitive dialogue procedure and the initial conditions of the contract are not substantially altered

2) when applications have been submitted in response to a restricted procedure negotiated

procedure or competitive dialogue procedure the contents of which do not correspond to the

requirements of the invitation to tender or if the tenders are not acceptable under Sections

39 41ndash43 46ndash56 60 and 62 an additional requirement shall be that the initial conditions of

the invitation to tender are not substantially altered and all tenderers which fulfil the minimum

requirements under Sections 46ndash54 and which have during the preceding procedure submitted

a tender which fulfills the format requirements of the tendering procedure shall be included in

the direct award of contracts

3) when for technical reasons or for reasons connected with the protection of exclusive rights

the contract may be awarded only to a particular supplier

4) when for reasons of urgency brought about by a crisis the time limits for the restricted pro-

cedure or negotiated procedure and the time limits for the accelerated procedure laid down in Section 30 cannot be complied with

5) when execution of the contract is absolutely necessary and the prescribed time limits can-

not be complied with for reasons of extreme urgency brought about by events unforeseeable by and independent of the contracting authorityentity

6) when the matter involves air and maritime transport services to armed forces or security

forces transferred or to be transferred abroad and such services can only be procured from

suppliers whose tenders are valid only for such a short period of time that compliance with the

set time limits is not possible

7) when the products to be acquired are manufactured purely for scientific and research pur-

poses and it is not a matter of securing the commercial viability of the products through mass production or to recover research and development costs

8) when the case involves a research and development service that has not been excluded from the scope of this Act on the basis of Section 8

9) for supplies quoted and purchased on a commodity market

10) for the purchase of supplies on particularly advantageous terms from either a supplier

winding up its business activities or from the receivers of a bankruptcy or liquidators in insol-vency proceedings an arrangement with creditors or a similar procedure

Section 23

Direct award of contracts for additional supplies

The contracting authorityentity may award contracts directly for additional supplies by the

original supplier which are intended either as a partial replacement or an extension of the pre-

vious delivery or installation provided that a change of supplier would oblige the contracting

authorityentity to acquire material with different technical characteristics which would result

in incompatibility or disproportionate technical difficulties in operation and maintenance The

validity period of such contracts and that of recurrent contracts may not exceed a maximum of

five years except in exceptional cases where the expected life cycle of the supplies equipment

or systems and the technical problems resulting from the change of supplier require a longer period of validity

In addition to the provisions laid down in subsection 1 the contracting authorityentity may

award contracts directly for additional works or services not included in the original contract

but which are to be acquired from the original supplier and have through unforeseen circum-

stances become necessary for the performance of the works or services as originally de-

scribed However such additional works or services cannot be technically or economically sep-

12

arated from the original contract without major inconvenience to the contracting authori-

tiesentities or when such works or services although separable from the performance of the

original contract are strictly necessary for the completion of the original contract In addition

the aggregate value of contracts awarded for additional works or services may not exceed

50 of the amount of the original contract

In addition to the provisions laid down in subsections 1 and 2 the contracting authorityentity

may award a contract for new works or services directly to the original supplier provided that

such works and services are in conformity with the contract awarded earlier according to the

restricted procedure The aforementioned procedure may be used on condition that the con-

tract notice for the original works or services indicates the possible use of a later direct award

of contract and provided that the estimated value of additional services or new public works

shall be taken into consideration when calculating the aggregate value of the original contract

Direct award of contract may be used only during the five years following the conclusion of the

original contract excluding exceptional conditions where the expected life cycle of the sup-

plies equipment or systems and the technical problems resulting from the change of supplier require a longer period of validity

Section 24

Competitive dialogue procedure

The contracting authorityentity may use the competitive dialogue procedure in particularly complex contracts where

1) the contracting authorityentity is not objectively able to specify the legal or financial condi-

tions of the contract or the technical solutions capable of satisfying their needs or objectives in accordance with Section 37(2)(2ndash4) and

2) the criterion used is to award the contract to the economically most advantageous tender

The contracting authorityentity shall ensure equal treatment of all tenderers and shall not

provide information in a manner that may compromise the equal treatment of the participants in competitive bidding

The contracting authorityentity may not reveal to the other participants in competitive bid-

ding solutions proposed by another tenderer or confidential information communicated during the negotiations without the agreement of the candidate or tenderer

The contracting authorityentity may pay monetary or other rewards to the participants in the competitive dialogue

Section 25

Conduct of the competitive dialogue

The contracting authorityentity shall publish a contract notice setting out their needs and re-

quirements for the contract The contracting authorityentity may further define the objective and content of the contract in a project description document

The contracting authorityentity shall initiate with the candidates selected in accordance with

the provisions of Sections 46ndash54 a dialogue the aim of which is to define one or more solu-

tions to fulfil the contract The contracting authorityentity may discuss all aspects of the con-tract with the candidates during this dialogue

The dialogue may take place in successive stages in order to reduce the number of tenders to

be discussed during the dialogue by applying the comparison criteria indicated in the invitation

to tender The contract notice or the project description shall indicate the recourse to a phased procedure and the criteria applied

The contracting authorityentity shall conclude the dialogue when it can identify the solutions

capable of realising the contract The contracting authorityentity shall inform the participants of the conclusion of the dialogue

The contracting authorityentity shall request the candidates to submit their final tenders on

the basis of the solutions presented and specified during the dialogue The tender shall contain

13

all the elements required for the performance of the project in accordance with the invitation

to tender In order to ensure a genuine competition the contracting authorityentity shall re-

quest tenders from a sufficient number of candidates provided that there is a sufficient num-ber of candidates or solutions that meet the criteria

The tenders shall be assessed on the basis of the comparison criteria indicated in the contract

notice or the project description The contracting authorityentity shall set the comparison cri-teria and award the contract in accordance with the provisions laid down in Section 57

The final tenders may be clarified and specified at the request of the contracting authori-

tyentity However such clarification or specification may not involve changes to the essential

features of the tenders or the invitations to tender in a manner that would distort competition

or have a discriminatory effect On the same conditions the contracting authorityentity may

ask the tenderer to clarify or specify aspects of or confirm commitments contained in the winning tender

Section 26

Framework agreement

The contracting authorityentit shall choose the suppliers pursuant to the framework agree-

ment by restricted or negotiated procedures The contracting authorityentity may also choose

the suppliers to the framework agreement by awarding the contract directly pursuant to the

provisions of Section 22 The suppliers to the framework agreement shall be admitted by ap-

plying the award criteria set in accordance with Chapter 8 Where a framework agreement is

concluded with several suppliers a minimum of three suppliers shall be selected unless there

are fewer suitable suppliers and admissible tenders that meet the award criteria

Contracts based on framework agreements shall be concluded with the original parties to the

agreement During the term of the agreement the parties may not make substantial amend-

ments to the terms laid down in the framework agreement The framework agreement may not be used in such a way as to distort restrict or prevent competition

The term of the framework agreement may not exceed seven years In exceptional cases the

framework agreement may be longer in duration when justified by the subject of the frame-

work agreement and taking into account the expected life cycle of the supplies equipment

and systems delivered and the technical problems that may result from the change of suppli-er

Section 27

Contracts based on a framework agreement

If the contracting authorityentity has concluded a framework agreement with a single suppli-

er contracts based on that agreement shall be awarded in accordance with the terms laid

down in the framework agreement The contracting authorityentity may ask the supplier to specify or supplement the tender in writing as needed

If the contracting authorityentity has concluded a framework agreement with several suppli-

ers contracts based on those agreements shall be awarded either by application of the terms

laid down in the framework agreement without reopening competition or where not all of the

terms are laid down in the framework agreement inviting the parties to the framework

agreement to tender in accordance with the terms of the framework agreement and where

appropriate with the terms of the call for tenders Where necessary the terms of the frame-

work agreement may be clarified or further defined

The contracting authorityentity carrying out a mini-competition to call off contracts under a

framework agreement shall ask the parties to the framework agreement capable of performing

the contract to submit a tender in writing The contracting authorityentity shall fix a time limit

which is sufficiently long to allow tenders to be submitted taking into account the subject mat-

ter of the contract the time needed to submit tenders and other similar factors The content of

the tenders shall remain confidential until the stipulated time limit of the mini-competition has

14

expired The contracting authorityentity shall choose the best tender in accordance with the

award criterion and comparison criteria indicated in the invitation to tender

Chapter 6

Mandatory publication of public contracts and time limits

Section 28

Publication requirement

When the procurement is carried out with the restricted procedure negotiated procedure or

competitive dialogue the contracting authorityentity shall provide for publication an infor-

mation notice concerning the procurement of the supplies when exceeding the EU threshold as

laid down in Section 12(1) above and the procurement of a service work and framework

agreement listed in Annex A The information notice shall include sufficient information to make a request to participate

The contracting authorityentity that has procured supplies exceeding the EU threshold as laid

down in Section 12(1) above or a service work or framework agreement listed in Annex A

shall provide a contract award notice for publication concerning the results of the award proce-

dure within 48 hours from concluding a public contract or framework agreement In addition

the contracting authorityentity shall provide a contract award notice for publication concerning

secondary service contracts which exceed the EU threshold as laid down in Section 12(1)

listed in Annex B and the suspension of the award procedure as laid down in Section 75 The

contract award notice concerning the suspension of the award procedure shall provide the rea-

sons for suspension The contract award notice concerning secondary service contracts as

listed in Annex B shall indicate whether the notice can be published The obligation to provide

a contract award notice for publication does not concern separate public contracts or direct award of contracts concluded within a framework agreement

The contracting authorityentity shall not provide information in the contract award notice the

publication of which is against the provisions laid down to protect the public interest or in par-

ticular the security of the state In addition the contracting authorityentity shall not provide

information which could endanger legally protected business secrets or harm commercial and healthy competition among tenderers

If the contracting authorityentity intends to benefit from the possibility to shorten regulated

bidding windows as laid down in Section 31(2) it shall provide a prior information notice for

publication The prior information notice shall provide the information available at the time the

notice is given on defence and security procurement that complies with the information in con-tract notice in the restricted procedure

In addition the contracting authorityentity may provide for publication a contract notice con-cerning a direct contract

More specific rules concerning the requirements for publication the means of communication

which may be used in sending the notices to be published their content publication and other

aspects of the requirement for publication shall be laid down in a Government decree

Section 29

Minimum time limits and fixing the time limits

When fixing time limits for tendering procedures the contracting authorityentity shall take

account of the quality and complexity of the procurement and the time required for drawing up

and submitting tenders Time limits shall be calculated from the date following the date on

which the contract notice is sent to be published In the case of a restricted procedure the

deadline fixed for the receipt of tenders shall be calculated from the date on which the invita-tion to tender was sent

In the case of a restricted procedure negotiated procedure and competitive dialogue the min-imum time limit for the submission of tenders shall be 37 days

15

In the case of a restricted procedure the minimum time limit for the receipt of tenders shall be

at least 40 days In the case of a negotiated procedure and competitive dialogue the deadline

fixed for the receipt of tenders shall be reasonable taking into account the subject matter and extent of the contract as well as other matters related thereto

Section 30

Accelerated procedure

In the case of restricted procedures and negotiated procedures the time limits laid down in

Section 29 above may be shortened if urgency renders them impracticable However the time

limit for the receipt of requests to participate shall be no less than 15 days or no less than 10

days if the notice is sent by electronic means In the case of the restricted procedure the min-imum time limit for the receipt of tenders shall be 10 days

Section 31

Reducing the time limits

The time limit set for the submission of participation requests can be restricted in the restrict-

ed procedure negotiated procedure and competitive dialogue by seven days if the contract

notices are sent for publication by electronic means

In restricted procedures the time limit for the receipt of tenders may be reduced to no less

than 22 days if the contracting authorityentity has sent the prior information notice for publi-

cation a minimum of 52 days and a maximum of 12 months before the date on which the con-tract notice was sent for publication

The time limit for the receipt of tenders may be reduced by an additional five days in the re-

stricted procedure provided that the contracting authorityentity offers full access to the con-

tract documents by electronic means from the date of publication of the notice specifying in the text of the notice the internet address where these documents are accessible

Section 32

Lengthening the time limits

The time limit for the receipt of tenders should be lengthened so that the bidders can familiar-

ise themselves with the information needed for drawing up the bids if the invitation to tender

documents or additional information that was requested in time have not been delivered within

the prescribed time limits or if submitting the bid requires an on-site visit or an on-site exam-ination of the documents related to the invitation to tender

Chapter 7

Invitation to tender and defining the object of the contract

Section 33

Invitation to tender

The invitation to tender shall be submitted in writing and drawn up to be sufficiently clear in

order to enable submission of commensurate and mutually comparable tenders The invitation

to tender or the contract notice shall invite suppliers to submit their tenders in writing by the

deadline

In case of a discrepancy between the invitation to tender and the contract notice the contract

notice shall apply

The contracting authorityentity may charge a reasonable fee for the invitation-to-tender doc-

uments to recover the costs arising from the exceptionally extensive scope of the documenta-tion the materials related thereto or other similar factors

10

PART II

Provisions on public supply contracts primary public service contracts as defined in

Annex A and public works contracts above the EU threshold

Chapter 5

Contract award procedures

Section 20

Choosing the contract award procedure

The competition procedures for public contracts are defined in Section 3 points 9ndash13 Restrict-

ed or negotiated procedures shall be primarily used in awarding contracts Direct award of con-

tracts the competitive dialogue procedure and framework agreements may be used under the conditions laid down in Sections 22ndash27

In the restricted procedure negotiated procedure and competitive dialogue procedure the

contracting authorityentity may limit in advance the number of candidates they will invite to

tender The contracting authorityentity shall indicate in the contract notice the minimum

number of candidates they intend to invite and where appropriate the maximum number The

contracting authorityentity shall apply the minimum requirements indicated in the contract

notice and objective and non-discriminatory criteria in selecting the candidates invited to ten-der

In order to ensure genuine competition the number of candidates to be invited must be suffi-

cient in relation to the size and subject matter of the contract In the restricted procedure

negotiated procedure and competitive dialogue procedure a minimum of three candidates

shall be invited to tender unless there are fewer than three suitable candidates

The minimum number of candidates to be invited to tender shall be the number of candidates

set in advance by the contracting authorityentity If there are fewer suitable candidates the

contracting authorityentity may continue the procedure by inviting suitable candidates to

submit a tender or to commence negotiations Only those candidates which meet the minimum

criteria and have submitted a request to participate may be invited to tender

If the contracting authorityentity is of the opinion that the number of candidates is not suffi-

cient to ensure a genuine competition it may publish the original contract notice again and set

a new time limit for submission of participation requests The candidates invited to tender shall

be selected from among the candidates who have come forward on the basis of the original

and the new contract notice Publication of a new contract notice does not restrict the possible

interruption of the contract award procedure by the contracting authorityentity as laid down in Section 75

Section 21

Conduct of the negotiated procedure

The contracting authorityentity shall negotiate with the tenderers in order to adapt the ten-

ders submitted by them to the requirements set in the contract notice or invitation to tender

The purpose of the negotiations shall be to select the best tender in accordance with Section 57

The negotiations may take place in successive stages in order to reduce the number of tenders

to be discussed during the negotiations by applying the award criteria provided that the re-

course to a phased procedure and criteria applied during the negotiations are indicated in the

contract notice or invitation to tender

In order to ensure a genuine competition there must be a sufficient number of candidates provided that there is a sufficient number of tenderers and tenders that meet the criteria

The contracting authorityentity shall ensure equal treatment of all candidates and tenderers

during the negotiations and shall not provide information in a manner which may compromise the equal treatment of the participants in the competitive bidding

11

Section 22

Direct award of contracts

The contracting authorityentity may award public contracts by a direct award

1) when no tenders or suitable tenders or applications have been submitted in response to a

restricted procedure negotiated procedure or competitive dialogue procedure and the initial conditions of the contract are not substantially altered

2) when applications have been submitted in response to a restricted procedure negotiated

procedure or competitive dialogue procedure the contents of which do not correspond to the

requirements of the invitation to tender or if the tenders are not acceptable under Sections

39 41ndash43 46ndash56 60 and 62 an additional requirement shall be that the initial conditions of

the invitation to tender are not substantially altered and all tenderers which fulfil the minimum

requirements under Sections 46ndash54 and which have during the preceding procedure submitted

a tender which fulfills the format requirements of the tendering procedure shall be included in

the direct award of contracts

3) when for technical reasons or for reasons connected with the protection of exclusive rights

the contract may be awarded only to a particular supplier

4) when for reasons of urgency brought about by a crisis the time limits for the restricted pro-

cedure or negotiated procedure and the time limits for the accelerated procedure laid down in Section 30 cannot be complied with

5) when execution of the contract is absolutely necessary and the prescribed time limits can-

not be complied with for reasons of extreme urgency brought about by events unforeseeable by and independent of the contracting authorityentity

6) when the matter involves air and maritime transport services to armed forces or security

forces transferred or to be transferred abroad and such services can only be procured from

suppliers whose tenders are valid only for such a short period of time that compliance with the

set time limits is not possible

7) when the products to be acquired are manufactured purely for scientific and research pur-

poses and it is not a matter of securing the commercial viability of the products through mass production or to recover research and development costs

8) when the case involves a research and development service that has not been excluded from the scope of this Act on the basis of Section 8

9) for supplies quoted and purchased on a commodity market

10) for the purchase of supplies on particularly advantageous terms from either a supplier

winding up its business activities or from the receivers of a bankruptcy or liquidators in insol-vency proceedings an arrangement with creditors or a similar procedure

Section 23

Direct award of contracts for additional supplies

The contracting authorityentity may award contracts directly for additional supplies by the

original supplier which are intended either as a partial replacement or an extension of the pre-

vious delivery or installation provided that a change of supplier would oblige the contracting

authorityentity to acquire material with different technical characteristics which would result

in incompatibility or disproportionate technical difficulties in operation and maintenance The

validity period of such contracts and that of recurrent contracts may not exceed a maximum of

five years except in exceptional cases where the expected life cycle of the supplies equipment

or systems and the technical problems resulting from the change of supplier require a longer period of validity

In addition to the provisions laid down in subsection 1 the contracting authorityentity may

award contracts directly for additional works or services not included in the original contract

but which are to be acquired from the original supplier and have through unforeseen circum-

stances become necessary for the performance of the works or services as originally de-

scribed However such additional works or services cannot be technically or economically sep-

12

arated from the original contract without major inconvenience to the contracting authori-

tiesentities or when such works or services although separable from the performance of the

original contract are strictly necessary for the completion of the original contract In addition

the aggregate value of contracts awarded for additional works or services may not exceed

50 of the amount of the original contract

In addition to the provisions laid down in subsections 1 and 2 the contracting authorityentity

may award a contract for new works or services directly to the original supplier provided that

such works and services are in conformity with the contract awarded earlier according to the

restricted procedure The aforementioned procedure may be used on condition that the con-

tract notice for the original works or services indicates the possible use of a later direct award

of contract and provided that the estimated value of additional services or new public works

shall be taken into consideration when calculating the aggregate value of the original contract

Direct award of contract may be used only during the five years following the conclusion of the

original contract excluding exceptional conditions where the expected life cycle of the sup-

plies equipment or systems and the technical problems resulting from the change of supplier require a longer period of validity

Section 24

Competitive dialogue procedure

The contracting authorityentity may use the competitive dialogue procedure in particularly complex contracts where

1) the contracting authorityentity is not objectively able to specify the legal or financial condi-

tions of the contract or the technical solutions capable of satisfying their needs or objectives in accordance with Section 37(2)(2ndash4) and

2) the criterion used is to award the contract to the economically most advantageous tender

The contracting authorityentity shall ensure equal treatment of all tenderers and shall not

provide information in a manner that may compromise the equal treatment of the participants in competitive bidding

The contracting authorityentity may not reveal to the other participants in competitive bid-

ding solutions proposed by another tenderer or confidential information communicated during the negotiations without the agreement of the candidate or tenderer

The contracting authorityentity may pay monetary or other rewards to the participants in the competitive dialogue

Section 25

Conduct of the competitive dialogue

The contracting authorityentity shall publish a contract notice setting out their needs and re-

quirements for the contract The contracting authorityentity may further define the objective and content of the contract in a project description document

The contracting authorityentity shall initiate with the candidates selected in accordance with

the provisions of Sections 46ndash54 a dialogue the aim of which is to define one or more solu-

tions to fulfil the contract The contracting authorityentity may discuss all aspects of the con-tract with the candidates during this dialogue

The dialogue may take place in successive stages in order to reduce the number of tenders to

be discussed during the dialogue by applying the comparison criteria indicated in the invitation

to tender The contract notice or the project description shall indicate the recourse to a phased procedure and the criteria applied

The contracting authorityentity shall conclude the dialogue when it can identify the solutions

capable of realising the contract The contracting authorityentity shall inform the participants of the conclusion of the dialogue

The contracting authorityentity shall request the candidates to submit their final tenders on

the basis of the solutions presented and specified during the dialogue The tender shall contain

13

all the elements required for the performance of the project in accordance with the invitation

to tender In order to ensure a genuine competition the contracting authorityentity shall re-

quest tenders from a sufficient number of candidates provided that there is a sufficient num-ber of candidates or solutions that meet the criteria

The tenders shall be assessed on the basis of the comparison criteria indicated in the contract

notice or the project description The contracting authorityentity shall set the comparison cri-teria and award the contract in accordance with the provisions laid down in Section 57

The final tenders may be clarified and specified at the request of the contracting authori-

tyentity However such clarification or specification may not involve changes to the essential

features of the tenders or the invitations to tender in a manner that would distort competition

or have a discriminatory effect On the same conditions the contracting authorityentity may

ask the tenderer to clarify or specify aspects of or confirm commitments contained in the winning tender

Section 26

Framework agreement

The contracting authorityentit shall choose the suppliers pursuant to the framework agree-

ment by restricted or negotiated procedures The contracting authorityentity may also choose

the suppliers to the framework agreement by awarding the contract directly pursuant to the

provisions of Section 22 The suppliers to the framework agreement shall be admitted by ap-

plying the award criteria set in accordance with Chapter 8 Where a framework agreement is

concluded with several suppliers a minimum of three suppliers shall be selected unless there

are fewer suitable suppliers and admissible tenders that meet the award criteria

Contracts based on framework agreements shall be concluded with the original parties to the

agreement During the term of the agreement the parties may not make substantial amend-

ments to the terms laid down in the framework agreement The framework agreement may not be used in such a way as to distort restrict or prevent competition

The term of the framework agreement may not exceed seven years In exceptional cases the

framework agreement may be longer in duration when justified by the subject of the frame-

work agreement and taking into account the expected life cycle of the supplies equipment

and systems delivered and the technical problems that may result from the change of suppli-er

Section 27

Contracts based on a framework agreement

If the contracting authorityentity has concluded a framework agreement with a single suppli-

er contracts based on that agreement shall be awarded in accordance with the terms laid

down in the framework agreement The contracting authorityentity may ask the supplier to specify or supplement the tender in writing as needed

If the contracting authorityentity has concluded a framework agreement with several suppli-

ers contracts based on those agreements shall be awarded either by application of the terms

laid down in the framework agreement without reopening competition or where not all of the

terms are laid down in the framework agreement inviting the parties to the framework

agreement to tender in accordance with the terms of the framework agreement and where

appropriate with the terms of the call for tenders Where necessary the terms of the frame-

work agreement may be clarified or further defined

The contracting authorityentity carrying out a mini-competition to call off contracts under a

framework agreement shall ask the parties to the framework agreement capable of performing

the contract to submit a tender in writing The contracting authorityentity shall fix a time limit

which is sufficiently long to allow tenders to be submitted taking into account the subject mat-

ter of the contract the time needed to submit tenders and other similar factors The content of

the tenders shall remain confidential until the stipulated time limit of the mini-competition has

14

expired The contracting authorityentity shall choose the best tender in accordance with the

award criterion and comparison criteria indicated in the invitation to tender

Chapter 6

Mandatory publication of public contracts and time limits

Section 28

Publication requirement

When the procurement is carried out with the restricted procedure negotiated procedure or

competitive dialogue the contracting authorityentity shall provide for publication an infor-

mation notice concerning the procurement of the supplies when exceeding the EU threshold as

laid down in Section 12(1) above and the procurement of a service work and framework

agreement listed in Annex A The information notice shall include sufficient information to make a request to participate

The contracting authorityentity that has procured supplies exceeding the EU threshold as laid

down in Section 12(1) above or a service work or framework agreement listed in Annex A

shall provide a contract award notice for publication concerning the results of the award proce-

dure within 48 hours from concluding a public contract or framework agreement In addition

the contracting authorityentity shall provide a contract award notice for publication concerning

secondary service contracts which exceed the EU threshold as laid down in Section 12(1)

listed in Annex B and the suspension of the award procedure as laid down in Section 75 The

contract award notice concerning the suspension of the award procedure shall provide the rea-

sons for suspension The contract award notice concerning secondary service contracts as

listed in Annex B shall indicate whether the notice can be published The obligation to provide

a contract award notice for publication does not concern separate public contracts or direct award of contracts concluded within a framework agreement

The contracting authorityentity shall not provide information in the contract award notice the

publication of which is against the provisions laid down to protect the public interest or in par-

ticular the security of the state In addition the contracting authorityentity shall not provide

information which could endanger legally protected business secrets or harm commercial and healthy competition among tenderers

If the contracting authorityentity intends to benefit from the possibility to shorten regulated

bidding windows as laid down in Section 31(2) it shall provide a prior information notice for

publication The prior information notice shall provide the information available at the time the

notice is given on defence and security procurement that complies with the information in con-tract notice in the restricted procedure

In addition the contracting authorityentity may provide for publication a contract notice con-cerning a direct contract

More specific rules concerning the requirements for publication the means of communication

which may be used in sending the notices to be published their content publication and other

aspects of the requirement for publication shall be laid down in a Government decree

Section 29

Minimum time limits and fixing the time limits

When fixing time limits for tendering procedures the contracting authorityentity shall take

account of the quality and complexity of the procurement and the time required for drawing up

and submitting tenders Time limits shall be calculated from the date following the date on

which the contract notice is sent to be published In the case of a restricted procedure the

deadline fixed for the receipt of tenders shall be calculated from the date on which the invita-tion to tender was sent

In the case of a restricted procedure negotiated procedure and competitive dialogue the min-imum time limit for the submission of tenders shall be 37 days

15

In the case of a restricted procedure the minimum time limit for the receipt of tenders shall be

at least 40 days In the case of a negotiated procedure and competitive dialogue the deadline

fixed for the receipt of tenders shall be reasonable taking into account the subject matter and extent of the contract as well as other matters related thereto

Section 30

Accelerated procedure

In the case of restricted procedures and negotiated procedures the time limits laid down in

Section 29 above may be shortened if urgency renders them impracticable However the time

limit for the receipt of requests to participate shall be no less than 15 days or no less than 10

days if the notice is sent by electronic means In the case of the restricted procedure the min-imum time limit for the receipt of tenders shall be 10 days

Section 31

Reducing the time limits

The time limit set for the submission of participation requests can be restricted in the restrict-

ed procedure negotiated procedure and competitive dialogue by seven days if the contract

notices are sent for publication by electronic means

In restricted procedures the time limit for the receipt of tenders may be reduced to no less

than 22 days if the contracting authorityentity has sent the prior information notice for publi-

cation a minimum of 52 days and a maximum of 12 months before the date on which the con-tract notice was sent for publication

The time limit for the receipt of tenders may be reduced by an additional five days in the re-

stricted procedure provided that the contracting authorityentity offers full access to the con-

tract documents by electronic means from the date of publication of the notice specifying in the text of the notice the internet address where these documents are accessible

Section 32

Lengthening the time limits

The time limit for the receipt of tenders should be lengthened so that the bidders can familiar-

ise themselves with the information needed for drawing up the bids if the invitation to tender

documents or additional information that was requested in time have not been delivered within

the prescribed time limits or if submitting the bid requires an on-site visit or an on-site exam-ination of the documents related to the invitation to tender

Chapter 7

Invitation to tender and defining the object of the contract

Section 33

Invitation to tender

The invitation to tender shall be submitted in writing and drawn up to be sufficiently clear in

order to enable submission of commensurate and mutually comparable tenders The invitation

to tender or the contract notice shall invite suppliers to submit their tenders in writing by the

deadline

In case of a discrepancy between the invitation to tender and the contract notice the contract

notice shall apply

The contracting authorityentity may charge a reasonable fee for the invitation-to-tender doc-

uments to recover the costs arising from the exceptionally extensive scope of the documenta-tion the materials related thereto or other similar factors

11

Section 22

Direct award of contracts

The contracting authorityentity may award public contracts by a direct award

1) when no tenders or suitable tenders or applications have been submitted in response to a

restricted procedure negotiated procedure or competitive dialogue procedure and the initial conditions of the contract are not substantially altered

2) when applications have been submitted in response to a restricted procedure negotiated

procedure or competitive dialogue procedure the contents of which do not correspond to the

requirements of the invitation to tender or if the tenders are not acceptable under Sections

39 41ndash43 46ndash56 60 and 62 an additional requirement shall be that the initial conditions of

the invitation to tender are not substantially altered and all tenderers which fulfil the minimum

requirements under Sections 46ndash54 and which have during the preceding procedure submitted

a tender which fulfills the format requirements of the tendering procedure shall be included in

the direct award of contracts

3) when for technical reasons or for reasons connected with the protection of exclusive rights

the contract may be awarded only to a particular supplier

4) when for reasons of urgency brought about by a crisis the time limits for the restricted pro-

cedure or negotiated procedure and the time limits for the accelerated procedure laid down in Section 30 cannot be complied with

5) when execution of the contract is absolutely necessary and the prescribed time limits can-

not be complied with for reasons of extreme urgency brought about by events unforeseeable by and independent of the contracting authorityentity

6) when the matter involves air and maritime transport services to armed forces or security

forces transferred or to be transferred abroad and such services can only be procured from

suppliers whose tenders are valid only for such a short period of time that compliance with the

set time limits is not possible

7) when the products to be acquired are manufactured purely for scientific and research pur-

poses and it is not a matter of securing the commercial viability of the products through mass production or to recover research and development costs

8) when the case involves a research and development service that has not been excluded from the scope of this Act on the basis of Section 8

9) for supplies quoted and purchased on a commodity market

10) for the purchase of supplies on particularly advantageous terms from either a supplier

winding up its business activities or from the receivers of a bankruptcy or liquidators in insol-vency proceedings an arrangement with creditors or a similar procedure

Section 23

Direct award of contracts for additional supplies

The contracting authorityentity may award contracts directly for additional supplies by the

original supplier which are intended either as a partial replacement or an extension of the pre-

vious delivery or installation provided that a change of supplier would oblige the contracting

authorityentity to acquire material with different technical characteristics which would result

in incompatibility or disproportionate technical difficulties in operation and maintenance The

validity period of such contracts and that of recurrent contracts may not exceed a maximum of

five years except in exceptional cases where the expected life cycle of the supplies equipment

or systems and the technical problems resulting from the change of supplier require a longer period of validity

In addition to the provisions laid down in subsection 1 the contracting authorityentity may

award contracts directly for additional works or services not included in the original contract

but which are to be acquired from the original supplier and have through unforeseen circum-

stances become necessary for the performance of the works or services as originally de-

scribed However such additional works or services cannot be technically or economically sep-

12

arated from the original contract without major inconvenience to the contracting authori-

tiesentities or when such works or services although separable from the performance of the

original contract are strictly necessary for the completion of the original contract In addition

the aggregate value of contracts awarded for additional works or services may not exceed

50 of the amount of the original contract

In addition to the provisions laid down in subsections 1 and 2 the contracting authorityentity

may award a contract for new works or services directly to the original supplier provided that

such works and services are in conformity with the contract awarded earlier according to the

restricted procedure The aforementioned procedure may be used on condition that the con-

tract notice for the original works or services indicates the possible use of a later direct award

of contract and provided that the estimated value of additional services or new public works

shall be taken into consideration when calculating the aggregate value of the original contract

Direct award of contract may be used only during the five years following the conclusion of the

original contract excluding exceptional conditions where the expected life cycle of the sup-

plies equipment or systems and the technical problems resulting from the change of supplier require a longer period of validity

Section 24

Competitive dialogue procedure

The contracting authorityentity may use the competitive dialogue procedure in particularly complex contracts where

1) the contracting authorityentity is not objectively able to specify the legal or financial condi-

tions of the contract or the technical solutions capable of satisfying their needs or objectives in accordance with Section 37(2)(2ndash4) and

2) the criterion used is to award the contract to the economically most advantageous tender

The contracting authorityentity shall ensure equal treatment of all tenderers and shall not

provide information in a manner that may compromise the equal treatment of the participants in competitive bidding

The contracting authorityentity may not reveal to the other participants in competitive bid-

ding solutions proposed by another tenderer or confidential information communicated during the negotiations without the agreement of the candidate or tenderer

The contracting authorityentity may pay monetary or other rewards to the participants in the competitive dialogue

Section 25

Conduct of the competitive dialogue

The contracting authorityentity shall publish a contract notice setting out their needs and re-

quirements for the contract The contracting authorityentity may further define the objective and content of the contract in a project description document

The contracting authorityentity shall initiate with the candidates selected in accordance with

the provisions of Sections 46ndash54 a dialogue the aim of which is to define one or more solu-

tions to fulfil the contract The contracting authorityentity may discuss all aspects of the con-tract with the candidates during this dialogue

The dialogue may take place in successive stages in order to reduce the number of tenders to

be discussed during the dialogue by applying the comparison criteria indicated in the invitation

to tender The contract notice or the project description shall indicate the recourse to a phased procedure and the criteria applied

The contracting authorityentity shall conclude the dialogue when it can identify the solutions

capable of realising the contract The contracting authorityentity shall inform the participants of the conclusion of the dialogue

The contracting authorityentity shall request the candidates to submit their final tenders on

the basis of the solutions presented and specified during the dialogue The tender shall contain

13

all the elements required for the performance of the project in accordance with the invitation

to tender In order to ensure a genuine competition the contracting authorityentity shall re-

quest tenders from a sufficient number of candidates provided that there is a sufficient num-ber of candidates or solutions that meet the criteria

The tenders shall be assessed on the basis of the comparison criteria indicated in the contract

notice or the project description The contracting authorityentity shall set the comparison cri-teria and award the contract in accordance with the provisions laid down in Section 57

The final tenders may be clarified and specified at the request of the contracting authori-

tyentity However such clarification or specification may not involve changes to the essential

features of the tenders or the invitations to tender in a manner that would distort competition

or have a discriminatory effect On the same conditions the contracting authorityentity may

ask the tenderer to clarify or specify aspects of or confirm commitments contained in the winning tender

Section 26

Framework agreement

The contracting authorityentit shall choose the suppliers pursuant to the framework agree-

ment by restricted or negotiated procedures The contracting authorityentity may also choose

the suppliers to the framework agreement by awarding the contract directly pursuant to the

provisions of Section 22 The suppliers to the framework agreement shall be admitted by ap-

plying the award criteria set in accordance with Chapter 8 Where a framework agreement is

concluded with several suppliers a minimum of three suppliers shall be selected unless there

are fewer suitable suppliers and admissible tenders that meet the award criteria

Contracts based on framework agreements shall be concluded with the original parties to the

agreement During the term of the agreement the parties may not make substantial amend-

ments to the terms laid down in the framework agreement The framework agreement may not be used in such a way as to distort restrict or prevent competition

The term of the framework agreement may not exceed seven years In exceptional cases the

framework agreement may be longer in duration when justified by the subject of the frame-

work agreement and taking into account the expected life cycle of the supplies equipment

and systems delivered and the technical problems that may result from the change of suppli-er

Section 27

Contracts based on a framework agreement

If the contracting authorityentity has concluded a framework agreement with a single suppli-

er contracts based on that agreement shall be awarded in accordance with the terms laid

down in the framework agreement The contracting authorityentity may ask the supplier to specify or supplement the tender in writing as needed

If the contracting authorityentity has concluded a framework agreement with several suppli-

ers contracts based on those agreements shall be awarded either by application of the terms

laid down in the framework agreement without reopening competition or where not all of the

terms are laid down in the framework agreement inviting the parties to the framework

agreement to tender in accordance with the terms of the framework agreement and where

appropriate with the terms of the call for tenders Where necessary the terms of the frame-

work agreement may be clarified or further defined

The contracting authorityentity carrying out a mini-competition to call off contracts under a

framework agreement shall ask the parties to the framework agreement capable of performing

the contract to submit a tender in writing The contracting authorityentity shall fix a time limit

which is sufficiently long to allow tenders to be submitted taking into account the subject mat-

ter of the contract the time needed to submit tenders and other similar factors The content of

the tenders shall remain confidential until the stipulated time limit of the mini-competition has

14

expired The contracting authorityentity shall choose the best tender in accordance with the

award criterion and comparison criteria indicated in the invitation to tender

Chapter 6

Mandatory publication of public contracts and time limits

Section 28

Publication requirement

When the procurement is carried out with the restricted procedure negotiated procedure or

competitive dialogue the contracting authorityentity shall provide for publication an infor-

mation notice concerning the procurement of the supplies when exceeding the EU threshold as

laid down in Section 12(1) above and the procurement of a service work and framework

agreement listed in Annex A The information notice shall include sufficient information to make a request to participate

The contracting authorityentity that has procured supplies exceeding the EU threshold as laid

down in Section 12(1) above or a service work or framework agreement listed in Annex A

shall provide a contract award notice for publication concerning the results of the award proce-

dure within 48 hours from concluding a public contract or framework agreement In addition

the contracting authorityentity shall provide a contract award notice for publication concerning

secondary service contracts which exceed the EU threshold as laid down in Section 12(1)

listed in Annex B and the suspension of the award procedure as laid down in Section 75 The

contract award notice concerning the suspension of the award procedure shall provide the rea-

sons for suspension The contract award notice concerning secondary service contracts as

listed in Annex B shall indicate whether the notice can be published The obligation to provide

a contract award notice for publication does not concern separate public contracts or direct award of contracts concluded within a framework agreement

The contracting authorityentity shall not provide information in the contract award notice the

publication of which is against the provisions laid down to protect the public interest or in par-

ticular the security of the state In addition the contracting authorityentity shall not provide

information which could endanger legally protected business secrets or harm commercial and healthy competition among tenderers

If the contracting authorityentity intends to benefit from the possibility to shorten regulated

bidding windows as laid down in Section 31(2) it shall provide a prior information notice for

publication The prior information notice shall provide the information available at the time the

notice is given on defence and security procurement that complies with the information in con-tract notice in the restricted procedure

In addition the contracting authorityentity may provide for publication a contract notice con-cerning a direct contract

More specific rules concerning the requirements for publication the means of communication

which may be used in sending the notices to be published their content publication and other

aspects of the requirement for publication shall be laid down in a Government decree

Section 29

Minimum time limits and fixing the time limits

When fixing time limits for tendering procedures the contracting authorityentity shall take

account of the quality and complexity of the procurement and the time required for drawing up

and submitting tenders Time limits shall be calculated from the date following the date on

which the contract notice is sent to be published In the case of a restricted procedure the

deadline fixed for the receipt of tenders shall be calculated from the date on which the invita-tion to tender was sent

In the case of a restricted procedure negotiated procedure and competitive dialogue the min-imum time limit for the submission of tenders shall be 37 days

15

In the case of a restricted procedure the minimum time limit for the receipt of tenders shall be

at least 40 days In the case of a negotiated procedure and competitive dialogue the deadline

fixed for the receipt of tenders shall be reasonable taking into account the subject matter and extent of the contract as well as other matters related thereto

Section 30

Accelerated procedure

In the case of restricted procedures and negotiated procedures the time limits laid down in

Section 29 above may be shortened if urgency renders them impracticable However the time

limit for the receipt of requests to participate shall be no less than 15 days or no less than 10

days if the notice is sent by electronic means In the case of the restricted procedure the min-imum time limit for the receipt of tenders shall be 10 days

Section 31

Reducing the time limits

The time limit set for the submission of participation requests can be restricted in the restrict-

ed procedure negotiated procedure and competitive dialogue by seven days if the contract

notices are sent for publication by electronic means

In restricted procedures the time limit for the receipt of tenders may be reduced to no less

than 22 days if the contracting authorityentity has sent the prior information notice for publi-

cation a minimum of 52 days and a maximum of 12 months before the date on which the con-tract notice was sent for publication

The time limit for the receipt of tenders may be reduced by an additional five days in the re-

stricted procedure provided that the contracting authorityentity offers full access to the con-

tract documents by electronic means from the date of publication of the notice specifying in the text of the notice the internet address where these documents are accessible

Section 32

Lengthening the time limits

The time limit for the receipt of tenders should be lengthened so that the bidders can familiar-

ise themselves with the information needed for drawing up the bids if the invitation to tender

documents or additional information that was requested in time have not been delivered within

the prescribed time limits or if submitting the bid requires an on-site visit or an on-site exam-ination of the documents related to the invitation to tender

Chapter 7

Invitation to tender and defining the object of the contract

Section 33

Invitation to tender

The invitation to tender shall be submitted in writing and drawn up to be sufficiently clear in

order to enable submission of commensurate and mutually comparable tenders The invitation

to tender or the contract notice shall invite suppliers to submit their tenders in writing by the

deadline

In case of a discrepancy between the invitation to tender and the contract notice the contract

notice shall apply

The contracting authorityentity may charge a reasonable fee for the invitation-to-tender doc-

uments to recover the costs arising from the exceptionally extensive scope of the documenta-tion the materials related thereto or other similar factors

12

arated from the original contract without major inconvenience to the contracting authori-

tiesentities or when such works or services although separable from the performance of the

original contract are strictly necessary for the completion of the original contract In addition

the aggregate value of contracts awarded for additional works or services may not exceed

50 of the amount of the original contract

In addition to the provisions laid down in subsections 1 and 2 the contracting authorityentity

may award a contract for new works or services directly to the original supplier provided that

such works and services are in conformity with the contract awarded earlier according to the

restricted procedure The aforementioned procedure may be used on condition that the con-

tract notice for the original works or services indicates the possible use of a later direct award

of contract and provided that the estimated value of additional services or new public works

shall be taken into consideration when calculating the aggregate value of the original contract

Direct award of contract may be used only during the five years following the conclusion of the

original contract excluding exceptional conditions where the expected life cycle of the sup-

plies equipment or systems and the technical problems resulting from the change of supplier require a longer period of validity

Section 24

Competitive dialogue procedure

The contracting authorityentity may use the competitive dialogue procedure in particularly complex contracts where

1) the contracting authorityentity is not objectively able to specify the legal or financial condi-

tions of the contract or the technical solutions capable of satisfying their needs or objectives in accordance with Section 37(2)(2ndash4) and

2) the criterion used is to award the contract to the economically most advantageous tender

The contracting authorityentity shall ensure equal treatment of all tenderers and shall not

provide information in a manner that may compromise the equal treatment of the participants in competitive bidding

The contracting authorityentity may not reveal to the other participants in competitive bid-

ding solutions proposed by another tenderer or confidential information communicated during the negotiations without the agreement of the candidate or tenderer

The contracting authorityentity may pay monetary or other rewards to the participants in the competitive dialogue

Section 25

Conduct of the competitive dialogue

The contracting authorityentity shall publish a contract notice setting out their needs and re-

quirements for the contract The contracting authorityentity may further define the objective and content of the contract in a project description document

The contracting authorityentity shall initiate with the candidates selected in accordance with

the provisions of Sections 46ndash54 a dialogue the aim of which is to define one or more solu-

tions to fulfil the contract The contracting authorityentity may discuss all aspects of the con-tract with the candidates during this dialogue

The dialogue may take place in successive stages in order to reduce the number of tenders to

be discussed during the dialogue by applying the comparison criteria indicated in the invitation

to tender The contract notice or the project description shall indicate the recourse to a phased procedure and the criteria applied

The contracting authorityentity shall conclude the dialogue when it can identify the solutions

capable of realising the contract The contracting authorityentity shall inform the participants of the conclusion of the dialogue

The contracting authorityentity shall request the candidates to submit their final tenders on

the basis of the solutions presented and specified during the dialogue The tender shall contain

13

all the elements required for the performance of the project in accordance with the invitation

to tender In order to ensure a genuine competition the contracting authorityentity shall re-

quest tenders from a sufficient number of candidates provided that there is a sufficient num-ber of candidates or solutions that meet the criteria

The tenders shall be assessed on the basis of the comparison criteria indicated in the contract

notice or the project description The contracting authorityentity shall set the comparison cri-teria and award the contract in accordance with the provisions laid down in Section 57

The final tenders may be clarified and specified at the request of the contracting authori-

tyentity However such clarification or specification may not involve changes to the essential

features of the tenders or the invitations to tender in a manner that would distort competition

or have a discriminatory effect On the same conditions the contracting authorityentity may

ask the tenderer to clarify or specify aspects of or confirm commitments contained in the winning tender

Section 26

Framework agreement

The contracting authorityentit shall choose the suppliers pursuant to the framework agree-

ment by restricted or negotiated procedures The contracting authorityentity may also choose

the suppliers to the framework agreement by awarding the contract directly pursuant to the

provisions of Section 22 The suppliers to the framework agreement shall be admitted by ap-

plying the award criteria set in accordance with Chapter 8 Where a framework agreement is

concluded with several suppliers a minimum of three suppliers shall be selected unless there

are fewer suitable suppliers and admissible tenders that meet the award criteria

Contracts based on framework agreements shall be concluded with the original parties to the

agreement During the term of the agreement the parties may not make substantial amend-

ments to the terms laid down in the framework agreement The framework agreement may not be used in such a way as to distort restrict or prevent competition

The term of the framework agreement may not exceed seven years In exceptional cases the

framework agreement may be longer in duration when justified by the subject of the frame-

work agreement and taking into account the expected life cycle of the supplies equipment

and systems delivered and the technical problems that may result from the change of suppli-er

Section 27

Contracts based on a framework agreement

If the contracting authorityentity has concluded a framework agreement with a single suppli-

er contracts based on that agreement shall be awarded in accordance with the terms laid

down in the framework agreement The contracting authorityentity may ask the supplier to specify or supplement the tender in writing as needed

If the contracting authorityentity has concluded a framework agreement with several suppli-

ers contracts based on those agreements shall be awarded either by application of the terms

laid down in the framework agreement without reopening competition or where not all of the

terms are laid down in the framework agreement inviting the parties to the framework

agreement to tender in accordance with the terms of the framework agreement and where

appropriate with the terms of the call for tenders Where necessary the terms of the frame-

work agreement may be clarified or further defined

The contracting authorityentity carrying out a mini-competition to call off contracts under a

framework agreement shall ask the parties to the framework agreement capable of performing

the contract to submit a tender in writing The contracting authorityentity shall fix a time limit

which is sufficiently long to allow tenders to be submitted taking into account the subject mat-

ter of the contract the time needed to submit tenders and other similar factors The content of

the tenders shall remain confidential until the stipulated time limit of the mini-competition has

14

expired The contracting authorityentity shall choose the best tender in accordance with the

award criterion and comparison criteria indicated in the invitation to tender

Chapter 6

Mandatory publication of public contracts and time limits

Section 28

Publication requirement

When the procurement is carried out with the restricted procedure negotiated procedure or

competitive dialogue the contracting authorityentity shall provide for publication an infor-

mation notice concerning the procurement of the supplies when exceeding the EU threshold as

laid down in Section 12(1) above and the procurement of a service work and framework

agreement listed in Annex A The information notice shall include sufficient information to make a request to participate

The contracting authorityentity that has procured supplies exceeding the EU threshold as laid

down in Section 12(1) above or a service work or framework agreement listed in Annex A

shall provide a contract award notice for publication concerning the results of the award proce-

dure within 48 hours from concluding a public contract or framework agreement In addition

the contracting authorityentity shall provide a contract award notice for publication concerning

secondary service contracts which exceed the EU threshold as laid down in Section 12(1)

listed in Annex B and the suspension of the award procedure as laid down in Section 75 The

contract award notice concerning the suspension of the award procedure shall provide the rea-

sons for suspension The contract award notice concerning secondary service contracts as

listed in Annex B shall indicate whether the notice can be published The obligation to provide

a contract award notice for publication does not concern separate public contracts or direct award of contracts concluded within a framework agreement

The contracting authorityentity shall not provide information in the contract award notice the

publication of which is against the provisions laid down to protect the public interest or in par-

ticular the security of the state In addition the contracting authorityentity shall not provide

information which could endanger legally protected business secrets or harm commercial and healthy competition among tenderers

If the contracting authorityentity intends to benefit from the possibility to shorten regulated

bidding windows as laid down in Section 31(2) it shall provide a prior information notice for

publication The prior information notice shall provide the information available at the time the

notice is given on defence and security procurement that complies with the information in con-tract notice in the restricted procedure

In addition the contracting authorityentity may provide for publication a contract notice con-cerning a direct contract

More specific rules concerning the requirements for publication the means of communication

which may be used in sending the notices to be published their content publication and other

aspects of the requirement for publication shall be laid down in a Government decree

Section 29

Minimum time limits and fixing the time limits

When fixing time limits for tendering procedures the contracting authorityentity shall take

account of the quality and complexity of the procurement and the time required for drawing up

and submitting tenders Time limits shall be calculated from the date following the date on

which the contract notice is sent to be published In the case of a restricted procedure the

deadline fixed for the receipt of tenders shall be calculated from the date on which the invita-tion to tender was sent

In the case of a restricted procedure negotiated procedure and competitive dialogue the min-imum time limit for the submission of tenders shall be 37 days

15

In the case of a restricted procedure the minimum time limit for the receipt of tenders shall be

at least 40 days In the case of a negotiated procedure and competitive dialogue the deadline

fixed for the receipt of tenders shall be reasonable taking into account the subject matter and extent of the contract as well as other matters related thereto

Section 30

Accelerated procedure

In the case of restricted procedures and negotiated procedures the time limits laid down in

Section 29 above may be shortened if urgency renders them impracticable However the time

limit for the receipt of requests to participate shall be no less than 15 days or no less than 10

days if the notice is sent by electronic means In the case of the restricted procedure the min-imum time limit for the receipt of tenders shall be 10 days

Section 31

Reducing the time limits

The time limit set for the submission of participation requests can be restricted in the restrict-

ed procedure negotiated procedure and competitive dialogue by seven days if the contract

notices are sent for publication by electronic means

In restricted procedures the time limit for the receipt of tenders may be reduced to no less

than 22 days if the contracting authorityentity has sent the prior information notice for publi-

cation a minimum of 52 days and a maximum of 12 months before the date on which the con-tract notice was sent for publication

The time limit for the receipt of tenders may be reduced by an additional five days in the re-

stricted procedure provided that the contracting authorityentity offers full access to the con-

tract documents by electronic means from the date of publication of the notice specifying in the text of the notice the internet address where these documents are accessible

Section 32

Lengthening the time limits

The time limit for the receipt of tenders should be lengthened so that the bidders can familiar-

ise themselves with the information needed for drawing up the bids if the invitation to tender

documents or additional information that was requested in time have not been delivered within

the prescribed time limits or if submitting the bid requires an on-site visit or an on-site exam-ination of the documents related to the invitation to tender

Chapter 7

Invitation to tender and defining the object of the contract

Section 33

Invitation to tender

The invitation to tender shall be submitted in writing and drawn up to be sufficiently clear in

order to enable submission of commensurate and mutually comparable tenders The invitation

to tender or the contract notice shall invite suppliers to submit their tenders in writing by the

deadline

In case of a discrepancy between the invitation to tender and the contract notice the contract

notice shall apply

The contracting authorityentity may charge a reasonable fee for the invitation-to-tender doc-

uments to recover the costs arising from the exceptionally extensive scope of the documenta-tion the materials related thereto or other similar factors

13

all the elements required for the performance of the project in accordance with the invitation

to tender In order to ensure a genuine competition the contracting authorityentity shall re-

quest tenders from a sufficient number of candidates provided that there is a sufficient num-ber of candidates or solutions that meet the criteria

The tenders shall be assessed on the basis of the comparison criteria indicated in the contract

notice or the project description The contracting authorityentity shall set the comparison cri-teria and award the contract in accordance with the provisions laid down in Section 57

The final tenders may be clarified and specified at the request of the contracting authori-

tyentity However such clarification or specification may not involve changes to the essential

features of the tenders or the invitations to tender in a manner that would distort competition

or have a discriminatory effect On the same conditions the contracting authorityentity may

ask the tenderer to clarify or specify aspects of or confirm commitments contained in the winning tender

Section 26

Framework agreement

The contracting authorityentit shall choose the suppliers pursuant to the framework agree-

ment by restricted or negotiated procedures The contracting authorityentity may also choose

the suppliers to the framework agreement by awarding the contract directly pursuant to the

provisions of Section 22 The suppliers to the framework agreement shall be admitted by ap-

plying the award criteria set in accordance with Chapter 8 Where a framework agreement is

concluded with several suppliers a minimum of three suppliers shall be selected unless there

are fewer suitable suppliers and admissible tenders that meet the award criteria

Contracts based on framework agreements shall be concluded with the original parties to the

agreement During the term of the agreement the parties may not make substantial amend-

ments to the terms laid down in the framework agreement The framework agreement may not be used in such a way as to distort restrict or prevent competition

The term of the framework agreement may not exceed seven years In exceptional cases the

framework agreement may be longer in duration when justified by the subject of the frame-

work agreement and taking into account the expected life cycle of the supplies equipment

and systems delivered and the technical problems that may result from the change of suppli-er

Section 27

Contracts based on a framework agreement

If the contracting authorityentity has concluded a framework agreement with a single suppli-

er contracts based on that agreement shall be awarded in accordance with the terms laid

down in the framework agreement The contracting authorityentity may ask the supplier to specify or supplement the tender in writing as needed

If the contracting authorityentity has concluded a framework agreement with several suppli-

ers contracts based on those agreements shall be awarded either by application of the terms

laid down in the framework agreement without reopening competition or where not all of the

terms are laid down in the framework agreement inviting the parties to the framework

agreement to tender in accordance with the terms of the framework agreement and where

appropriate with the terms of the call for tenders Where necessary the terms of the frame-

work agreement may be clarified or further defined

The contracting authorityentity carrying out a mini-competition to call off contracts under a

framework agreement shall ask the parties to the framework agreement capable of performing

the contract to submit a tender in writing The contracting authorityentity shall fix a time limit

which is sufficiently long to allow tenders to be submitted taking into account the subject mat-

ter of the contract the time needed to submit tenders and other similar factors The content of

the tenders shall remain confidential until the stipulated time limit of the mini-competition has

14

expired The contracting authorityentity shall choose the best tender in accordance with the

award criterion and comparison criteria indicated in the invitation to tender

Chapter 6

Mandatory publication of public contracts and time limits

Section 28

Publication requirement

When the procurement is carried out with the restricted procedure negotiated procedure or

competitive dialogue the contracting authorityentity shall provide for publication an infor-

mation notice concerning the procurement of the supplies when exceeding the EU threshold as

laid down in Section 12(1) above and the procurement of a service work and framework

agreement listed in Annex A The information notice shall include sufficient information to make a request to participate

The contracting authorityentity that has procured supplies exceeding the EU threshold as laid

down in Section 12(1) above or a service work or framework agreement listed in Annex A

shall provide a contract award notice for publication concerning the results of the award proce-

dure within 48 hours from concluding a public contract or framework agreement In addition

the contracting authorityentity shall provide a contract award notice for publication concerning

secondary service contracts which exceed the EU threshold as laid down in Section 12(1)

listed in Annex B and the suspension of the award procedure as laid down in Section 75 The

contract award notice concerning the suspension of the award procedure shall provide the rea-

sons for suspension The contract award notice concerning secondary service contracts as

listed in Annex B shall indicate whether the notice can be published The obligation to provide

a contract award notice for publication does not concern separate public contracts or direct award of contracts concluded within a framework agreement

The contracting authorityentity shall not provide information in the contract award notice the

publication of which is against the provisions laid down to protect the public interest or in par-

ticular the security of the state In addition the contracting authorityentity shall not provide

information which could endanger legally protected business secrets or harm commercial and healthy competition among tenderers

If the contracting authorityentity intends to benefit from the possibility to shorten regulated

bidding windows as laid down in Section 31(2) it shall provide a prior information notice for

publication The prior information notice shall provide the information available at the time the

notice is given on defence and security procurement that complies with the information in con-tract notice in the restricted procedure

In addition the contracting authorityentity may provide for publication a contract notice con-cerning a direct contract

More specific rules concerning the requirements for publication the means of communication

which may be used in sending the notices to be published their content publication and other

aspects of the requirement for publication shall be laid down in a Government decree

Section 29

Minimum time limits and fixing the time limits

When fixing time limits for tendering procedures the contracting authorityentity shall take

account of the quality and complexity of the procurement and the time required for drawing up

and submitting tenders Time limits shall be calculated from the date following the date on

which the contract notice is sent to be published In the case of a restricted procedure the

deadline fixed for the receipt of tenders shall be calculated from the date on which the invita-tion to tender was sent

In the case of a restricted procedure negotiated procedure and competitive dialogue the min-imum time limit for the submission of tenders shall be 37 days

15

In the case of a restricted procedure the minimum time limit for the receipt of tenders shall be

at least 40 days In the case of a negotiated procedure and competitive dialogue the deadline

fixed for the receipt of tenders shall be reasonable taking into account the subject matter and extent of the contract as well as other matters related thereto

Section 30

Accelerated procedure

In the case of restricted procedures and negotiated procedures the time limits laid down in

Section 29 above may be shortened if urgency renders them impracticable However the time

limit for the receipt of requests to participate shall be no less than 15 days or no less than 10

days if the notice is sent by electronic means In the case of the restricted procedure the min-imum time limit for the receipt of tenders shall be 10 days

Section 31

Reducing the time limits

The time limit set for the submission of participation requests can be restricted in the restrict-

ed procedure negotiated procedure and competitive dialogue by seven days if the contract

notices are sent for publication by electronic means

In restricted procedures the time limit for the receipt of tenders may be reduced to no less

than 22 days if the contracting authorityentity has sent the prior information notice for publi-

cation a minimum of 52 days and a maximum of 12 months before the date on which the con-tract notice was sent for publication

The time limit for the receipt of tenders may be reduced by an additional five days in the re-

stricted procedure provided that the contracting authorityentity offers full access to the con-

tract documents by electronic means from the date of publication of the notice specifying in the text of the notice the internet address where these documents are accessible

Section 32

Lengthening the time limits

The time limit for the receipt of tenders should be lengthened so that the bidders can familiar-

ise themselves with the information needed for drawing up the bids if the invitation to tender

documents or additional information that was requested in time have not been delivered within

the prescribed time limits or if submitting the bid requires an on-site visit or an on-site exam-ination of the documents related to the invitation to tender

Chapter 7

Invitation to tender and defining the object of the contract

Section 33

Invitation to tender

The invitation to tender shall be submitted in writing and drawn up to be sufficiently clear in

order to enable submission of commensurate and mutually comparable tenders The invitation

to tender or the contract notice shall invite suppliers to submit their tenders in writing by the

deadline

In case of a discrepancy between the invitation to tender and the contract notice the contract

notice shall apply

The contracting authorityentity may charge a reasonable fee for the invitation-to-tender doc-

uments to recover the costs arising from the exceptionally extensive scope of the documenta-tion the materials related thereto or other similar factors

14

expired The contracting authorityentity shall choose the best tender in accordance with the

award criterion and comparison criteria indicated in the invitation to tender

Chapter 6

Mandatory publication of public contracts and time limits

Section 28

Publication requirement

When the procurement is carried out with the restricted procedure negotiated procedure or

competitive dialogue the contracting authorityentity shall provide for publication an infor-

mation notice concerning the procurement of the supplies when exceeding the EU threshold as

laid down in Section 12(1) above and the procurement of a service work and framework

agreement listed in Annex A The information notice shall include sufficient information to make a request to participate

The contracting authorityentity that has procured supplies exceeding the EU threshold as laid

down in Section 12(1) above or a service work or framework agreement listed in Annex A

shall provide a contract award notice for publication concerning the results of the award proce-

dure within 48 hours from concluding a public contract or framework agreement In addition

the contracting authorityentity shall provide a contract award notice for publication concerning

secondary service contracts which exceed the EU threshold as laid down in Section 12(1)

listed in Annex B and the suspension of the award procedure as laid down in Section 75 The

contract award notice concerning the suspension of the award procedure shall provide the rea-

sons for suspension The contract award notice concerning secondary service contracts as

listed in Annex B shall indicate whether the notice can be published The obligation to provide

a contract award notice for publication does not concern separate public contracts or direct award of contracts concluded within a framework agreement

The contracting authorityentity shall not provide information in the contract award notice the

publication of which is against the provisions laid down to protect the public interest or in par-

ticular the security of the state In addition the contracting authorityentity shall not provide

information which could endanger legally protected business secrets or harm commercial and healthy competition among tenderers

If the contracting authorityentity intends to benefit from the possibility to shorten regulated

bidding windows as laid down in Section 31(2) it shall provide a prior information notice for

publication The prior information notice shall provide the information available at the time the

notice is given on defence and security procurement that complies with the information in con-tract notice in the restricted procedure

In addition the contracting authorityentity may provide for publication a contract notice con-cerning a direct contract

More specific rules concerning the requirements for publication the means of communication

which may be used in sending the notices to be published their content publication and other

aspects of the requirement for publication shall be laid down in a Government decree

Section 29

Minimum time limits and fixing the time limits

When fixing time limits for tendering procedures the contracting authorityentity shall take

account of the quality and complexity of the procurement and the time required for drawing up

and submitting tenders Time limits shall be calculated from the date following the date on

which the contract notice is sent to be published In the case of a restricted procedure the

deadline fixed for the receipt of tenders shall be calculated from the date on which the invita-tion to tender was sent

In the case of a restricted procedure negotiated procedure and competitive dialogue the min-imum time limit for the submission of tenders shall be 37 days

15

In the case of a restricted procedure the minimum time limit for the receipt of tenders shall be

at least 40 days In the case of a negotiated procedure and competitive dialogue the deadline

fixed for the receipt of tenders shall be reasonable taking into account the subject matter and extent of the contract as well as other matters related thereto

Section 30

Accelerated procedure

In the case of restricted procedures and negotiated procedures the time limits laid down in

Section 29 above may be shortened if urgency renders them impracticable However the time

limit for the receipt of requests to participate shall be no less than 15 days or no less than 10

days if the notice is sent by electronic means In the case of the restricted procedure the min-imum time limit for the receipt of tenders shall be 10 days

Section 31

Reducing the time limits

The time limit set for the submission of participation requests can be restricted in the restrict-

ed procedure negotiated procedure and competitive dialogue by seven days if the contract

notices are sent for publication by electronic means

In restricted procedures the time limit for the receipt of tenders may be reduced to no less

than 22 days if the contracting authorityentity has sent the prior information notice for publi-

cation a minimum of 52 days and a maximum of 12 months before the date on which the con-tract notice was sent for publication

The time limit for the receipt of tenders may be reduced by an additional five days in the re-

stricted procedure provided that the contracting authorityentity offers full access to the con-

tract documents by electronic means from the date of publication of the notice specifying in the text of the notice the internet address where these documents are accessible

Section 32

Lengthening the time limits

The time limit for the receipt of tenders should be lengthened so that the bidders can familiar-

ise themselves with the information needed for drawing up the bids if the invitation to tender

documents or additional information that was requested in time have not been delivered within

the prescribed time limits or if submitting the bid requires an on-site visit or an on-site exam-ination of the documents related to the invitation to tender

Chapter 7

Invitation to tender and defining the object of the contract

Section 33

Invitation to tender

The invitation to tender shall be submitted in writing and drawn up to be sufficiently clear in

order to enable submission of commensurate and mutually comparable tenders The invitation

to tender or the contract notice shall invite suppliers to submit their tenders in writing by the

deadline

In case of a discrepancy between the invitation to tender and the contract notice the contract

notice shall apply

The contracting authorityentity may charge a reasonable fee for the invitation-to-tender doc-

uments to recover the costs arising from the exceptionally extensive scope of the documenta-tion the materials related thereto or other similar factors

15

In the case of a restricted procedure the minimum time limit for the receipt of tenders shall be

at least 40 days In the case of a negotiated procedure and competitive dialogue the deadline

fixed for the receipt of tenders shall be reasonable taking into account the subject matter and extent of the contract as well as other matters related thereto

Section 30

Accelerated procedure

In the case of restricted procedures and negotiated procedures the time limits laid down in

Section 29 above may be shortened if urgency renders them impracticable However the time

limit for the receipt of requests to participate shall be no less than 15 days or no less than 10

days if the notice is sent by electronic means In the case of the restricted procedure the min-imum time limit for the receipt of tenders shall be 10 days

Section 31

Reducing the time limits

The time limit set for the submission of participation requests can be restricted in the restrict-

ed procedure negotiated procedure and competitive dialogue by seven days if the contract

notices are sent for publication by electronic means

In restricted procedures the time limit for the receipt of tenders may be reduced to no less

than 22 days if the contracting authorityentity has sent the prior information notice for publi-

cation a minimum of 52 days and a maximum of 12 months before the date on which the con-tract notice was sent for publication

The time limit for the receipt of tenders may be reduced by an additional five days in the re-

stricted procedure provided that the contracting authorityentity offers full access to the con-

tract documents by electronic means from the date of publication of the notice specifying in the text of the notice the internet address where these documents are accessible

Section 32

Lengthening the time limits

The time limit for the receipt of tenders should be lengthened so that the bidders can familiar-

ise themselves with the information needed for drawing up the bids if the invitation to tender

documents or additional information that was requested in time have not been delivered within

the prescribed time limits or if submitting the bid requires an on-site visit or an on-site exam-ination of the documents related to the invitation to tender

Chapter 7

Invitation to tender and defining the object of the contract

Section 33

Invitation to tender

The invitation to tender shall be submitted in writing and drawn up to be sufficiently clear in

order to enable submission of commensurate and mutually comparable tenders The invitation

to tender or the contract notice shall invite suppliers to submit their tenders in writing by the

deadline

In case of a discrepancy between the invitation to tender and the contract notice the contract

notice shall apply

The contracting authorityentity may charge a reasonable fee for the invitation-to-tender doc-

uments to recover the costs arising from the exceptionally extensive scope of the documenta-tion the materials related thereto or other similar factors

16

Section 34

Content of the invitation to tender

The invitation to tender or where applicable the contract notice shall include

1) a definition of the object of the contract in accordance with the provisions laid down in Sec-

tions 37 and 38 concerning technical specifications and submitting requests and any other quality requirements relating to the object of the contract

2) a reference to the contract notice published

3) the deadline for the receipt of tenders

4) the address where the tenders must be delivered

5) the language or languages in which the tenders must be drawn up

6) requirements regarding the candidates or tenderers economic and financial standing tech-

nical capacity and professional ability information security and other requirements and a list of documents which the candidate or tenderer must furnish to satisfy these

7) requirements regarding subcontract agreements information security and security of sup-ply

8) the award criteria and where one of the criteria for the award is that of the financially most

advantageous tender the comparison criteria for the award and the relative weighing given to

each of the criteria or a reasonable range or in exceptional cases the ranking of the compari-son criteria and

9) the period of validity of the tenders

Furthermore the invitation to tender or the contract notice shall also contain any other infor-mation with particular importance to the tendering procedure and the submission of tenders

Section 35

Sending invitations to tender or making them available to candidates and tenderers

In restricted and negotiated procedures and in the competitive dialogue the invitation to ten-

der shall be sent only to those candidates which the contracting authorityentity has selected

for the tendering procedure The invitation to tender shall be sent to all candidates at the same time

In the case of an accelerated or restricted procedure and in the negotiated procedure the con-

tracting authorityentity shall send supplementary information concerning the invitation to

tender not less than four days before the deadline fixed for the receipt of tenders provided

that the supplementary information is requested in good time

Section 36

Invitation to negotiate

In negotiated procedures and in the competitive dialogue the invitation to participate in nego-

tiations shall include the invitation to tender or if appropriate a project description or infor-

mation on where those documents may be requested the deadline for requesting such docu-

ments and if applicable the sum payable for obtaining them and the method of payment to be

used

The invitation to negotiate must include the information referred to in Section 34(1) However

the invitation to negotiate in the competitive dialogue does not have to state the time limit for

the receipt of tenders although it must indicate the start date of the negotiations the address at which the negotiations will be held and the language in which they will be conducted

17

Section 37

Technical specifications of contracts

Technical specifications concerning the content of the contract shall be stated in the contract

notice or the invitation to tender Technical specifications shall afford equal access to tenderers

to participate in the competitive bidding Technical specifications may not unjustifiably restrict competitive bidding for public defence and security contracts

Technical specifications shall be formulated

1) by reference to the following definitions in the order of priority whereupon the wording or equivalent shall be added to the reference

a) a Finnish standard in a field other than defence or other national standard enforcing a Eu-

ropean standard

b) European technical approval

c) a common technical specification in a field other than defence

d) a national standard in a field other than defence enforcing an international standard

e) another international standard in a field other than defence

f) another technical system of reference drawn up by the European standardisation bodies or

when these do not exist a technical specification related to other than a national standard in

the field of defence national technical approval or national design calculation and the execu-tion of works and the manufacture of products

g) a technical specification in a field other than defence which originates in the industry and is widely approved or

h) a national defence standard and defence materiel specification which resembles the stand-

ard in question

2) on the basis of requirements concerning performance or functional characteristics which are sufficiently precise to allow the definition of the object and award of the contract

3) by reference to the technical specifications mentioned in point 1 for certain characteristics and by reference to the requirements mentioned in point 2 for certain characteristics or

4) on the basis of performance or functional requirements by reference to the technical specifi-

cations in accordance with point 1 by means of their presumed conformity with the require-

ments related to performance or functional characteristics

Notwithstanding the provisions laid down in subsection 2 above technical specifications may

be drawn up to take into account compulsory national technical regulations or technical re-

quirements relating to for example product safety which the state must fulfil on the basis of international standardisation agreements

Technical specifications shall not refer to a specific manufacturer or source of products Tech-

nical specifications shall not refer to trade marks patents product types origin a specific

method or production having the effect of favouring or discriminating against certain suppli-

ers or products Such reference shall be permitted on an exceptional basis only where a suffi-

ciently precise and intelligible description of the object of the contract is not otherwise possi-

ble Such reference shall be accompanied by the wording or equivalent

Section 38

Technical specifications concerning environmental characteristics

The performance and functional requirements referred to in Section 37(2)(2) above may in-

clude requirements concerning environmental characteristics The contracting authorityentity

may use the detailed specifications or if necessary parts thereof as defined by European or multinational eco-labels or another eco-label

Conditions for the use of the specifications or parts thereof as defined by eco-labels are

1) those specifications are appropriate to define the characteristics of the supplies or services that are the object of the contract

18

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

3) stakeholders such as public authorities consumers manufacturers representatives of re-

tail trade and environmental organisations can participate in drawing up the label and

4) the label is accessible to all interested parties

The contracting authorityentity may indicate that the products or services bearing a particular

eco-label are considered to comply with the requirements for environmental characteristics

However the contracting authorityentity must accept another appropriate means of proof

submitted by the tenderer such as a technical dossier of the manufacturer or a technical re-

port drawn by a recognised body

Section 39

Alternative tenders

Where the criterion for the award is that of the financially most advantageous tender the con-

tracting authorityentity may accept alternative tenders provided that the contract notice indi-cates that presentation of alternative tenders is permitted

The alternative tender must satisfy the minimum requirements set in the invitation to tender

and the requirements for presenting alternatives The alternative tender can be accepted if it

fulfills the aforementioned requirements set out in the invitation to tender

If the contracting authorityentity has indicated that it shall accept the submission of alterna-

tive tenders it may not reject the alternative on the sole ground that it would lead to a service contract instead of a supply contract or a supply contract instead of a service contract

Section 40

Special conditions relating to public contracts

The contracting authorityentity may lay down special conditions relating to the performance of

a contract which may concern in particular information security security of supply subcon-

tracting or environmental and social aspects compliance with the provisions of the Interna-

tional Labour Organisation (ILO) working conditions and the terms of employment provided

that the conditions are non-discriminatory and compatible with Community law and that they are indicated in the contract notice or invitation to tender

Section 41

Requirements concerning information security

If the object of the contract requires produces or otherwise deals with documents containing

classified information the contracting authorityentity can lay down to tenderers the measures

or requirements necessary to protect such information The contracting authorityentity may

require from the tenderer a commitment and information which show their ability to fulfil in-

formation security requirements Information security related requirements and commitments

and information to be provided shall be indicated in the contract notice or invitation to tender

The contracting authorityentity may as required carry out and take into consideration any

supplemental investigations it has conducted

Section 42

Requirements concerning security of supply

The contracting authorityentity shall define its requirements concerning security of supply in

the contract notice or invitation to tender

The contracting authorityentity may require that the tender shall contain inter alia the fol-

lowing

19

1) certification or documentation demonstrating to the contract entitys satisfaction that the

tenderer will be capable of complying with the requirements concerning the export transfer

and transit of the products associated with the contract including any documentation applica-

ble thereto and received from one or more states

2) a notice from the tenderer concerning any restrictions on the assignment transfer or use of

the products or services or the results thereof arising from export control or information secu-

rity arrangements

3) certification or documentation demonstrating that the organisation and location of the ten-

derers supply chain will be capable of complying with the requirements concerning security of

supply stated in the contract notice or invitation to tender and a commitment to ensure that

any changes in the supply chain during the execution of the contract will not adversely affect

compliance with these requirements

4) a commitment from the tenderer to establish or maintain ndash in accordance with conditions to

be separately agreed ndash the capacity necessary to meet additional requirements as required by

the contracting authorityentity as a result of a crisis situation

5) any supplementary documentation received from the tenderers national authorities regard-

ing the fulfilment of the requirement under point 4

6) a commitment from the tenderer to carry out the maintenance modernisation or adaptation

of the products that are the object of the contract

7) a commitment from the tenderer to inform the contracting authorityentity in due time of

any changes in its organisation supply chain or strategy that may affect its obligations to the

contracting authorityentity

8) a commitment from the tenderer to deliver to the contracting authorityentity in accord-

ance with the agreed conditions all necessary special equipment needed for the production of

spare parts components assemblies and special testing equipment including technical draw-

ings licenses and instructions for use in the event that the tenderer is no longer able to pro-

vide these products

The tenderer may not be required to obtain a commitment from a European Union member

state that would restrict the right of that member state to apply ndash in accordance with relevant

international or European Union laws ndash the licensing criteria for its national export transfer or

transit of goods under the conditions prevailing at the time of such licensing decision

Section 43

Obligations relating to taxation environmental protection employment protection and provisions on working conditions

The contracting authorityentity may specify in the invitation to tender those authorities from

which the tenderer may obtain information on the obligations relating to taxation environmen-

tal protection employment protection working conditions or the provisions on working condi-

tions The contracting authorityentity shall request the tenderers to state that they have tak-en the aforementioned obligations into consideration when drawing up their tender

The provisions of subsection 1 do not affect the obligations to examine the tenders referred to in Section 58 that are exceptionally low in price

Section 44

Demonstration of compliance with tender requirements

The tenderer shall in its tender demonstrate that the product service or works contract it is

applying for meets the requirements set in the invitation to tender Tenders which do not meet

20

the requirements set in the tendering procedure or the invitation to tender shall be excluded

from the competitive bidding

If the contracting authorityentity has drawn up the technical specifications in accordance with

Section 37(2)(1) and the tenderer in its tender indicates ndash in a way which is satisfactory to

the contracting authorityentity ndash that the product service or work it offers meets the re-

quirements set by the contracting authorityentity the contracting authorityentity may not

reject the tender on grounds that the product service or work that complies with the tender

does not meet the technical specifications referred to by the contracting authorityentity As

proof the tenderer may use for example the manufacturers technical documentation or a

technical report issued by a recognised body located in Finland or in another European Union member state

If the contracting authorityentity has drawn up the technical specifications on the basis of the

requirements concerning performance capacity or functional characteristics it may not reject

the tender on grounds of the tender not meeting the requirements set provided that the prod-

uct service or work being offered complies with a nationally enforced European standard Eu-

ropean technical approval official technical definition international standard or technical refer-

ence and these technical specifications apply to the requirements set for the performance ca-

pacity or functional characteristics stated in the invitation to tender The tenderer must indi-

cate in its tender in a way satisfactory to the contracting authorityentity that the product

service or work that conforms to the standard fulfills the criteria set by the contracting authori-

tyentity for performance capacity and functional characteristics As proof the tenderer may

use for example the manufacturers technical documentation or a technical report issued by a recognised body located in Finland or in another European Union member state

Section 45

Communication

Notifications and exchanges of information relating to a public contract shall be submitted ei-

ther by mail telefax or by electronic means according to the choice of the contracting authori-

tyentity The means of communication chosen must be in common use and not restrict the

tenderers access to the tendering procedure

The electronic tools used for communicating information as well as their technical characteris-

tics must be non-discriminatory generally available and compatible with information and

communication technology products in general use The contracting authorityentity may re-

quire that electronic signatures in tenders and requests to participate meet the requirements

laid down in the Act on Strong Electronic Identification and Electronic Signatures (6172009)

Communication and the exchange and storage of information shall be carried out in such a way

as to ensure that the integrity of data and the confidentiality of the requests to participate and

tenders are preserved The contracting authorityentity shall ensure that the content of the

tenders and requests to participate is not revealed before the time-limit set for submitting

them The contracting authorityentity shall inform in the contract notice of possible require-

ments concerning information exchange

More specific provisions concerning the methods of communication and technical and other

requirements for electronic communication are laid down in a Government decree

Chapter 8

Selection of candidates and tenderers and selection of tenders

Section 46

Assessment of the suitability of candidates and tenderers

Exclusion from competitive bidding of candidates and tenderers assessment of the suitability

of candidates and tenderers and in line with Sections 47 to 56 the selection of tenderers shall

be carried out before the tenders are compared However a candidate or tenderer may be

excluded from participation in the competitive bidding in accordance with Section 47 or 48

21

even later during the competition when the contracting authorityentity has been made aware

of the criterion for exclusion

Section 47

Exclusion from the competition of candidates and tenderers convicted of certain of-fences

The contracting authorityentity shall make a decision to exclude a candidate or tenderer from

the competitive bidding if it has become aware that the candidate or tenderer or director or

any person having powers of representation decision or control has been the subject of a con-

viction by judgment that has obtained the force of res judicata and is specified in a criminal record for one or more of the reasons listed below

1) participation in the activities of a criminal organisation as defined in Chapter 17 Section 1 a of the Criminal Code of Finland (391889)

2) bribery as defined in Chapter 16 Section 13 aggravated bribery as defined in Chapter 16

Section 14 or bribery in business as defined in Chapter 30 Section 7 of the Criminal Code of

Finland

3) tax fraud as defined in Chapter 29 Section 1 or aggravated tax fraud as defined in Chapter

29 Section 2 subsidy fraud as defined in Chapter 29 Section 5 aggravated subsidy fraud as

defined in Chapter 29 Section 6 subsidy misuse as defined in Chapter 29 Section 7 of the Criminal Code of Finland

4) an offence committed with terrorist intent as defined in Chapter 34 a Section 1 of the Crim-

inal Code of Finland preparations for an offence to be committed with terrorist intent as de-

fined in Section 2 leading a terrorist group as defined in Section 3 advancing the activities of

a terrorist group as defined in Section 4 providing training for the purpose of committing a

terrorist offence as defined in Section 4 a recruitment for the purpose of committing a terror-

ist offence as defined in Section 4 b and instigation aiding and abetting or attempt to com-mit the offences mentioned above

5) money laundering as defined in Chapter 32 Section 6 aggravated money laundering as

defined in Section 7 or financing terrorism as defined in Chapter 34 a Section 5 of the Crimi-

nal Code of Finland or

6) work discrimination through undue influence as defined in Chapter 47 Section 3 a of the

Criminal Code

A candidate or tenderer convicted to pay a corporate fine referred to in Chapter 9 of the Crimi-nal Code shall also be excluded from the competitive bidding

The contracting authorityentity shall exclude a candidate or tenderer from the competitive

bidding if the candidate or tenderer has been the subject of a conviction by judgment that has

the force of res judicata in another state for reasons analogous to those mentioned in subsec-

tion 1 In a European Union member state the provisions shall apply to the following crimes defined in European Union Law

1) participation in a criminal organisation as defined in Article 2(1) of the Council Joint Action

98773JHA on making it a criminal offence to participate in a criminal organisation in the

member states of the European Union

2) corruption as defined in Article 3 of the Council Act of 26 May 1997 drawing up on the ba-

sis of Article K3(2)(c) of the Treaty on European Union the Convention on the fight against

corruption involving officials of the European Communities or officials of member states of the

European Union and Article 2(1)(a) of the Council Framework Decision 2003568JHA on com-

bating corruption in the private sector

3) fraud within the meaning of Article 1 of the Convention relating to the protection of the fi-nancial interests of the European Communities

4) a terrorist offence as defined in Article 1 of the Council Framework Decision 2002475JHA

an offence associated with terrorist activities as defined in Article 3 or instigation aiding and abetting or attempt as defined in Article 4 and

22

5) money laundering as defined in Article 1 of Council Directive 91308EEC on prevention of

the use of the financial system for the purpose of money laundering or financing of terrorism

A derogation from the requirement to exclude from the participation in competitive bidding a

candidate or tenderer who has been the subject of a conviction for a reason referred to in this

Section may be provided for overriding requirements in the general interest or subject to the

condition that the convicted person no longer holds a responsible position in the undertaking submitting the tender

Section 48

Other criteria for exclusion

The contracting authorityentity may make the decision to exclude from participation in com-petitive bidding a candidate or tenderer which

1) is bankrupt or is being wound up or has ceased operations where it has entered into an

arrangement with creditors or a reorganisation plan or is in an analogous situation arising from a similar procedure under the law

2) is the subject of proceedings for declaration of bankruptcy for an order for compulsory

winding up or of proceedings for other procedures referred to in point 1

3) has been convicted by judgment that has the force of res judicata of any offence concerning hisher professional conduct such as breaching the obligations concerning export control

4) has been guilty of grave professional misconduct such as breaching its obligations concern-

ing information security and security of supply or a similar offence in association with a previ-ous contract which the contracting authorityentity can prove

5) whose reliability has been proven to be inadequate to the degree where a risk to national

security cannot be excluded

6) has not fulfilled obligations to pay taxes or social security contributions in Finland or in the

country in which it is established or

7) is guilty of serious misrepresentation in supplying the information to the contracting au-

thorityentity required to apply the provisions of this Chapter or has neglected to provide the required information

The provisions laid down in subsection 1 points 3 and 4 shall apply in cases where the person

guilty of a mistake or negligence is a director or any person having powers of representation

decision or control in respect of the candidate or tenderer The decision on the exclusion may

take account of other matters such as the seriousness of the offence or omission the connec-

tion with the object of the contract the time lapsed any other implications of the offence and

any remedial action taken by the person convicted of the offence or omission

Section 49

Verification of the criteria for exclusion

The contracting authorityentity may request that the candidates and tenderers and the com-

petent authorities of other European Union member states in accordance with the appropriate

regulations submit evidence and clarifications in order to verify whether the exclusion criterion referred to in Section 47 or 48 applies to the candidate or tenderer

As regards Section 47 and Section 48(1)(3) the contracting authorityentity shall accept as

evidence an extract from the criminal record issued by a competent authority in the country in

which the tenderer is established As regards Section 48(1)(2 6) a certificate issued by the competent authority shall also be accepted as evidence

Where the country in which the candidate or tenderer is established does not issue such ex-

tracts or documents they may be replaced by a declaration on oath or by a solemn declaration

under the law of the country in which the representative of the candidate or tenderer is estab-

lished

23

Section 50

Requirements and references relating to the suitability of candidates and tenderers

The contracting authorityentity may set requirements relating to the candidates or tenderers

financial and economic standing technical capacity professional ability information security

security of supply and requirements concerning quality and request that the candidates and tenderers submit the related reports

In order to verify the requirements and that the requirements are satisfied the references re-

quested shall be related to the candidates or tenderers ability to perform the contract and

they shall be in proportion to the subject matter purpose and scope of the contract Require-

ments and references shall be indicated in the contract notice Candidates or tenderers failing

to satisfy the minimum requirements set by the contracting authorityentity shall be excluded from participation in the competitive bidding

The contracting authorityentity shall indicate in the contract notice any objective and non-

discriminatory criteria and rules which it shall apply in restricted procedures negotiated pro-

cedures or in the competitive dialogue procedure to admit candidates or tenderers to the com-

petitive bidding or negotiations The contracting authorityentity shall state the minimum

number of candidates and where appropriate also the maximum number of candidates

The contracting authorityentity may invite candidates or tenderers to supplement or clarify

the references and other documents

Section 51

Register data

The contracting authorityentity may request that the candidate or tenderer prove under the law of the country in which it is established that

1) it is registered in a professional or trade register

2) it carries out a trade by providing a declaration on oath or certificate and

3) it is entitled to provide a service in the country in which it is established by providing a li-cense or a certificate of membership of an organisation

Section 52

Economic and financial standing

The contracting authorityentity may request that a candidate or tenderer furnish proof of its financial and economic standing by references such as

1) a statement from a bank or credit institution or evidence of professional risk indemnity in-surance

2) a profit and loss account balance sheet annual report financial statements and group fi-

nancial statements if these must be published in the country in which the candidate or ten-

derer is established and

3) a statement of the undertakings overall turnover and turnover in the area that is the object

of the contract for a maximum of the three most recent fiscal periods if information on these turnovers is available

If for any valid reason the candidate or tenderer is unable to provide the documents request-

ed by the contracting authorityentity it may demonstrate its economic and financial standing

by any other document which the contracting authorityentity considers appropriate

24

Section 53

Technical capacity and professional ability

The contracting authorityentity may request that the candidate or tenderer furnish proof of its

technical capacity and professional ability by the following documents

1) the educational and professional qualifications of the candidate or tenderer or those of the

management of the undertaking and in particular those of the persons responsible for man-

aging the work or providing services or products that involve siting or installation functions or services

2) a list of the works carried out over a period not exceeding the past five years accompanied

by a certificate of satisfactory execution of the most important works the certificate shall indi-

cate the value date and site of the works and shall specify whether they were carried out ac-

cording to the rules of the trade and properly completed where appropriate a competent au-thority shall submit these certificates to the contracting authorityentity directly

3) a list of the principal deliveries carried out or the main services provided over a period not

exceeding the past five years with the sums dates and recipients involved where the recipi-

ent was a public body the list shall be verified by the competent authority where the recipient

was a private purchaser by the purchasers certification or failing this by a declaration of the

candidate or tenderer

4) an indication of the technical experts or bodies involved whether or not they belong directly

to the candidate or tenderer especially those responsible for quality control and in the case of

public works contracts those experts and bodies upon whom the contractor can call in order to carry out the work

5) the candidates or tenderers description of the tools equipment and actions by which it

ensures quality as well as the research and testing equipment required to implement the con-tract and the internal rules regarding industrial property and copyrights

6) a certificate for the inspection carried out by the candidate or tenderer or on its behalf by a

competent official body of the country in which the candidate or tenderer is established regard-

ing the candidatersquos or tendererrsquos production capacities technical capacity research or trial sys-

tems or quality control measures which it will implement

7) a statement of the average annual manpower of the service provider or contractor and the number of managerial staff for the last three years as a maximum

8) a statement of the tools fixtures technical equipment number of personnel know-how and

sources available to the service provider or tenderer for carrying out the contract for fulfilling

the additional needs that may arise from any crisis that the contracting authorityentity may

undergo or for the maintenance modernisation or adaptation of the products that are the ob-

ject of the contract in addition information on the geographic location of the tools fixtures

technical equipment number of personnel know-how and sources in the event that these are located outside of the European Union

9) with regard to the products to be supplied samples descriptions and photographs the au-

thenticity of which must be certified if the contracting authorityentity so requests and certifi-

cates drawn up by an official quality control institute or agencies of recognised competence

attesting to the conformity of the products to be supplied with technical specifications or standards and

10) with regard to public contracts having as their object supplies requiring a service or siting

or installation work an indication of professional ability efficiency experience and reliability

If appropriate to the object of the contract the contracting authorityentity may request that

the candidate or tenderer provide an indication of the environmental management measures to

be applied when performing a public works or service contract Should the contracting authori-

tyentity require the production of certificates drawn up by independent bodies attesting the

compliance of the tenderer with environmental management standards it shall refer to the

Community eco management and audit scheme (EMAS) or to the environmental management

standards based on relevant European or international standards certified by bodies conform-

25

ing to Community law or relevant European or international standards concerning certification

The contracting authorityentity shall accept equivalent certificates from bodies established in

other European Union member states and other evidence of equivalent environmental man-agement measures from the suppliers

If appropriate to the object of the contract the contracting authorityentity may request that

the candidate or tenderer provide an indication of the quality assurance measures Should the

contracting authorityentity require the production of certificates drawn up by independent

bodies attesting to the compliance of the tenderer with quality assurance standards the con-

tracting authorityentity shall refer to quality assurance systems based on relevant European

standards series certified by bodies conforming to the European standards series concerning

certification The contracting authorityentity shall accept equivalent certificates from bodies

established in other European Union member states and other evidence of equivalent quality assurance measures from the tenderers

If for any valid reason the candidate or tenderer is unable to provide the documents request-

ed by the contracting authorityentity it may demonstrate its economic and financial standing by any other document which the contracting authorityentity considers appropriate

Section 54

Requirements on information security set for candidates and tenderers

If classified documents are submitted drawn up or otherwise dealt with to carry out a call for

tender the contracting authorityentity may set requirements for candidates or tenderers to

meet the information security requirements laid down for authorities The contracting authori-

tyentity may request candidates or tenderers to provide commitments or information which

prove their capacity to meet the information security requirements

For candidates who have not obtained the certificate or commitment referred to in Section 1

the contracting authorityentity may grant additional time to obtain the certificate or commit-

ment In that case a deadline shall be set for the delivery of these In addition to the com-

mitments and information provided by the candidate the contracting authorityentity may render and consider any supplemental investigations it has conducted

Section 55

Legal form of the candidate and the tenderer and indication of the responsible per-sons

A candidate or tenderer which under the legislation of the country in which it is established is

entitled to provide the services that are the object of the contract may not be rejected solely

on the ground that under the legislation of the European Union member state in which the contract is awarded it would be required to be either a natural or legal person

In the case of public service and public works contracts as well as public supply contracts in-

volving siting and installation operations the contracting authorityentity may require candi-

dates and tenderers to indicate in the tender or the request to participate the names and pro-

fessional qualifications of the persons responsible for carrying out the services or the work in question

Section 56

Groups participating in the competitive bidding and reliance on the capacities of oth-er entities

Groups of suppliers may submit tenders or put themselves forward as candidates The con-

tracting authorityentity may not require these groups of candidates or tenderers to assume a

specific legal form in order to submit a tender or a request to participate However the group

may be required to do so during the term of the contract to the extent that this change is necessary for the satisfactory performance of the contract

26

A candidate or tenderer may rely on the capacities of other entities regardless of the legal na-

ture of the links it has with them to carry out the contract A group may rely on the abilities of

participants in the group or in other entities in order to perform the contract The candidate or

tenderer or a group thereof shall furnish the contracting authorityentity with proof that the

requirements relating to economic and financial standing technical capacity and professional

ability and other requirements are satisfied This proof may include contracts between compa-

nies or other binding documents demonstrating that the capacities to satisfy the requirements are accessible by the candidates or tenderers

Section 57

Selecting the tender

The contract awarded shall be either the economically most advantageous tender from the

point of view of the contracting authorityentity in accordance with the comparison criteria

linked to the object of the contract or the lowest in price When the award is made to the eco-

nomically most advantageous tender the criteria may include for example quality price

technical merit aesthetic and functional characteristics environmentally friendly characteris-

tics running costs costs associated with a long life cycle cost effectiveness after-sales ser-

vice and technical assistance delivery date delivery period and period of completion security of supply and interoperability and functional characteristics

The contracting authorityentity shall specify in the contract notice or the invitation to tender

documentation the comparison criteria and the relative weighting which it gives to each of the

criteria chosen to determine the economically most advantageous tender In the competitive

dialogue procedure the equivalent information shall be specified in the contract notice or the

project description The weighting may also be specified by indicating a reasonable range If it

is not reasonably possible to specify the relative weighting of the comparison criteria they

shall be specified in the order of importance

Section 58

Abnormally low tenders

The contracting authorityentity may reject tenders that are abnormally low in relation to the

quality and scope of the contract Before it may reject a tender the contracting authori-

tyentity shall request in writing a written report from the tenderer on the constituent ele-ments of the tender

The request referred to in subsection 1 may relate in particular to the economic and technical

solutions chosen for the manufacture of the goods supply of the service or execution of the

work exceptionally favourable conditions for the execution of the contract the originality of

the proposed solution employment protection at the place where the contract is executed and

compliance with the provisions relating to working conditions or the possibility of the tenderer

receiving state aid The contracting authorityentity shall verify the constituent elements of the tender taking into account the evidence supplied

The contracting authorityentity may reject a tender which is abnormally low in price because

the tenderer has obtained state aid illegally The tender can be rejected only after a sufficient

time limit has been fixed for the tenderer to prove that the state aid in question was granted

legally If the contracting authorityentity rejects the tender because of illegal state aid it shall report the matter to the European Commission

Section 59

Taking account of a subsidy awarded by the contracting authorityentity in the com-parison of tenders

If the tenderer is an entity belonging to the contracting authorityentitys organisation or if the

contracting authorityentity has granted or will grant the tenderer a financial subsidy which will

affect the price of the tender in the comparison of the tenders the contracting authorityentity

27

shall take into account the factors which will genuinely affect the price of the tender paid by

the contracting authorityentity such as the financial subsidy in question

Chapter 9 Subcontract agreements

Section 60

Subcontracts with related companies

The contracting authorityentity may request the tenderer to state in its tender which part of

the contract it plans to award as a subcontract to related companies and to list these compa-

nies The contracting authorityentity may also request tenderers submitting tenders as a

group as defined in Section 56 to indicate in their tender which part of the contract they plan

to award as a subcontract to their related companies and to list these companies If the rela-

tionships between the companies change during the procurement procedure the tenderer shall update the information included in its tender

A related company means a company which is under the direct or indirect control of the ten-

derer or which has direct or indirect control of the tenderer or which jointly with the tenderer

is under the control of another company on the basis of ownership financial contribution or the

regulations under which the company operates A company is considered to have control of

another company when it owns the majority of that companys unrestricted shareholder equity

controls the majority of the companys shareholders voting rights or may appoint half of the

members of the companys administrative managerial or supervisory body

The provisions of Sections 62-66 of this Act concerning subcontracting agreements are not

applicable to subcontracting agreements which the tenderer has entered into with a related

company or when the tender has been submitted by a group as defined in Section 56 to a

company belonging to the same group or a company which is a related company of a company

belonging to the group

Section 61

Selecting a subcontractor

The tenderer may select its subcontractors in all subcontracting agreements unless otherwise prescribed in Sections 62ndash66 of this Act

Section 62

Requirements concerning subcontracting agreements

The contracting authorityentity shall define the requirements for a subcontracting agreement

in the contract notice and further specify them in the invitation to tender In defining the re-

quirements for subcontracting agreements the principles of proportionality and non-discrimination must be complied with

The contracting authorityentity may require that the tenderer state in the tender which part

or parts of the contract it plans to subcontract to third parties the content of the subcontract-ing agreement and the chosen subcontractors shall also be stated

In addition to the provisions of subsection 2 the contracting authorityentity may require that

the tenderer selected as a contracting party shall

1) in accordance with the procedures laid down in Sections 64ndash66 of this Act invite bids on

part or all of the subcontracts included in the tender and stated in the notice in accordance with subsection 2 or

2) award the minimum amount of the contract value as defined by the contracting authori-

tyentity to third parties as subcontracts and invite bids on these subcontracts in accordance

with the procedures laid down in Sections 64ndash66 of this Act The contracting authorityentity

shall in that case define as percentages the minimum and maximum amount the tenderer shall

award to third parties as subcontracts and require that the tenderer state in its tender which

28

part or parts of the contract it plans to award to third parties as subcontracts in order to fulfil

the requirement of the contracting authorityentity The maximum amount defined by the con-tracting authorityentity shall not exceed 30 percent of the value of the contract or

3) invite bids on a part or parts of the subcontracts which it plans to award to third parties in

addition to the subcontracts mentioned in point 2 above In that case the contracting authori-

tyentity shall require that the tenderer specify in its tender those parts of the contract which it

plans to award as subcontracts to third parties in addition to the subcontracts mentioned in point 2 above

In addition to the provisions of subsections 2 and 3 the contracting authorityentity may re-

quire that the tenderer report any changes occurring at the subcontractor level during the im-

plementation of the contract

The contracting authorityentity shall set the maximum and minimum amount as defined in

subsection 3 point 2 having regard to the object and value of the contract and the character of the industry sector in question the competitive situation and technical capacity

The tenderer has the right to award more subcontracts to third parties than required by the contracting authorityentity in accordance with this Section

Section 63

Rejecting a subcontractor

The contracting authorityentity may specify requirements concerning the subcontractors fi-

nancial and economic situation technical capacity and professional competence information

security security of supply or quality These as well as other requirements concerning the

suitability of the subcontractor shall be stated in the contract notice These requirements shall

be equitable and non-discriminatory and conform to the requirements set in the invitation to tender concerning the suitability of the candidate or tenderer

The contracting authorityentity may decide to reject a subcontractor selected by the tenderer

during the contract procedure or the implementation of the contract if the subcontractor does

not meet the requirements set in the contract notice concerning the suitability of the subcon-

tractor or the exclusion criterion laid down in Section 47 or Section 48 applies to the subcon-

tractor The contracting authorityentity shall justify the rejection in writing to the tenderer

Section 64

Implementation of subcontracts

A tenderer selected as a contracting party shall act openly and treat any and all subcontractors

equally and in a non-discriminatory manner

A tenderer selected as a contracting party shall provide for the publication a subcontract notice

concerning those subcontracts to which the bidding obligation laid down in Section 62(3) ap-

plies and whose estimated value without value added tax exceeds the EU thresholds men-

tioned in Section 12 The notice obligation shall not apply to a subcontract which fulfills the

requirement set for a direct contract award mentioned in Sections 22ndash23 The provisions of

Sections 14ndash16 shall apply to the calculation of the estimated value of subcontracts

The tenderer selected as the contracting party shall specify in the subcontract notice the crite-

ria which the tenderer will apply in assessing the suitability of the subcontractors and in select-

ing them These criteria shall be equitable and non-discriminatory and conform to the criteria

that the contracting authorityentity applies in assessing the suitability of the tenderers The

requirements shall be related to the object of the subcontract and be proportional to the scope

of the subcontract

A tenderer selected as a contracting party may publish a subcontract notice also concerning

those subcontracts which meet the criteria for the subcontracts referred to in Sections 22ndash23

29

Section 65

Exemption from an obligation related to subcontracting

A tenderer selected as a contracting party may not be required to enter into a subcontract if it

indicates in a manner satisfactory to the contracting authorityentity that none of the subcon-

tractors that participated in the competition or none of their tenders fulfil the requirements

set in the subcontract notice and therefore the tenderer selected as a contracting party could

not fulfil the contract requirements

Section 66

Framework agreements

The provisions of Section 62 shall not apply to subcontracts awarded by the tenderer selected

as a contracting party if the framework agreement was put out to tender in accordance with

the provisions of Section 64

Subcontracts based on a framework agreement shall be awarded in accordance with the condi-

tions confirmed in the framework agreement and concluded between the original participants

to the framework agreement Conditions analogous to those of the framework agreement shall be complied with in subcontracting agreements

The framework agreement may not be used in such a way as to distort restrict or prevent

competition

The term of the framework agreement may not exceed seven years In exceptional cases the

framework agreement may be longer in duration when duly justified by the expected life cycle

of the supplies equipment and systems delivered and the technical problems that might re-

sult from the change of supplier

Section 67

The responsibility of the tenderer for carrying out the contract

The requirements set by the contracting authorityentity on the basis of this Chapter and the

notices issued by the tenderers based on them do not limit the responsibility of the tenderer

selected as a contracting party to carry out the contract PART III

National procedures

Chapter 10 Tendering procedures for contracts below the EU threshold for second-

ary service contracts referred to in Annex B and for certain other contracts

Section 68

Contract award procedures

The contract award procedures specified in this Chapter may be used for service contracts

public works contracts and the service contracts referred to in Annex A which are below the EU

threshold referred to in Section 12(1) but above the national threshold referred to in Section

13(1) and for secondary service contracts referred to in Annex B which are above the national

threshold referred to in Section 13(1)

The procedures laid down in this Chapter may also be used for defence contracts referred to in

Section 5 when the value of the defence contracts exceed the national threshold as referred to

in Section 13 provided that the criteria set in Article 346(1)(b) of TFEU are fulfilled

30

Section 69

General rules of procedure

The contracting authorityentity shall aim to take advantage of the prevailing competitive con-

ditions and award the contract primarily through competitive bidding A sufficient number of

tenders shall be requested in terms of the scope and subject matter of the contract to ensure

competition

A public notice shall be issued however the publication obligation does not apply in the case

of contracts that fulfil the criteria set in Article 346(1)(b) of TFEU

The contracting authorityentity may request a tender directly from one supplier if competitive

bidding cannot be carried out for reasons justified on the basis of national defence state secu-rity or security of supply

The contracting authorityentity may also request a tender directly from one supplier if

1) no tenders or no suitable tenders were received in the competitive bidding carried out

previously a further requirement is that the conditions of the original invitation to ten-

der are not fundamentally changed

2) for technical reasons or for reasons connected with the protection of exclusive rights the contract may be awarded only to a particular supplier

3) for reasons of urgency brought about by a crisis it is not possible to carry out competi-tive bidding

4) execution of the contract is absolutely necessary and competitive bidding cannot be

carried out for reasons of extreme urgency brought about by events unforeseeable by

and independent of the contracting authorityentity

5) the product to be acquired are manufactured purely for scientific or research purposes

and it is not a matter of establishing commercial viability of the products or to recover research and development costs

6) the object of the contract is a research and development service that has not been ex-cluded from the scope of this Act on the basis of Section 8

7) the contract is necessary in order to determine whether the final result of the research

and development service is suitable to be used as intended by the contracting authori-tyentity

8) the object of the contract consists of supplies quoted and purchased on a commodity market

9) the supplies are purchased on particularly advantageous terms from either a supplier

winding up its business activities or from the receivers of a bankruptcy or liquidators in

insolvency proceedings an arrangement with creditors or a similar procedure

10) the object of the contract is a second-hand product

11) the object of the contract is based on a supplementary contract right incorporated into

the contract

12) the object of the contract is additional deliveries by the original supplier which are in-

tended either as a partial replacement of existing supplies or installations or as the ex-

tension of existing supplies or installations and a change of supplier would result in in-

compatibility or disproportionate technical difficulties in operation and maintenance

13) the object of the contract is additional works or services not included in the project ini-

tially but which have through unforeseen circumstances become necessary for the per-

formance of the works or services as originally described

31

Section 70

Negotiations with tenderers and specifying the tender and the invitation to tender

The contracting authorityentity may discuss all aspects of the contract with the tenderers dur-

ing the negotiation provided that the negotiations do not result in changing constituent ele-

ments in the invitation to tender in a discriminating manner or in a manner which distorts

competition

The purpose of the negotiations shall be to select the best tender in accordance with Section

73(2) or to determine one or more alternative solutions for contract implementation before

sending the final invitation to tender The dialogue may take place in successive stages in or-

der to reduce the number of tenders or solutions to be discussed during the dialogue by apply-

ing the comparison criteria indicated in the invitation to tender or project description

In competitive bidding the requirement for negotiations shall be that the negotiations and the

criteria to be complied with during the negotiations have been stated in the invitation to tender

or the project description

The contracting authorityentity shall ensure equal treatment of all candidates and tenderers

during the negotiations and shall not provide information in a manner that may compromise

the equal treatment of the participants in competitive bidding

Section 71

Invitation to tender

The invitation to tender shall be submitted in writing and drawn up to be sufficiently clear in

order to enable submission of commensurate and mutually comparable tenders The invitation

to tender shall contain all information that is particularly important in terms of the contracting

procedure and submitting the tender

The invitation to tender shall include the award criterion and where the criterion for the award is that of the economically most advantageous tender the comparison criteria and the ranking thereof The invitation to tender shall indicate a reasonable time allotted for the tenderers to submit a tender taking into consideration the scope and subject matter of the contract

The contracting authorityentity may charge a reasonable fee for the invitation-to-tender doc-

uments to recover the costs arising from the exceptionally extensive scope of the documenta-

tion the materials related thereto or other similar factors

Section 72

Drawing up the invitation to tender and submitting the tender

The invitation to tender and the tenders based thereon shall be drawn up in writing They may be executed orally only in exceptional circumstances if the written procedure is justifiably not appropriate If the invitation to tender or the tenders are not drawn up in writing a record shall be kept of the negotiations held with the tenderers the record shall indicate the infor-mation impacting the course of the procedure and the position of the tenderers

Section 73

Selection of a tender and a tenderer rejecting a tender

The contracting authorityentity may exclude from the competitive bidding any supplier which

taking into consideration the scope and object of the contract and other criteria does not pos-

sess the qualifications to carry out the contract The contracting authorityentity may exclude

32

from the competitive bidding any tender submitted by a tenderer who does not possess the

qualifications to carry out the contract when taking into consideration the scope and object of

the contract and other criteria

The contracting authorityentity shall award the contract to the tenderer whose tender has the

lowest price or complies with the comparison criteria set in the invitation to tender and is eco-

nomically the most advantageous

The contracting authorityentity may reject a tender which does not fulfil the essential condi-

tions set in the invitation to tender or has an abnormally low price in terms of the subject mat-

ter and scope of the contract Before it may reject a tender the contracting authorityentity

shall request in writing details of the constituent elements of a tender that is abnormally low in

price

PART IV

General provisions on decisions concerning contract awards conclusion of contracts

procurement rectification public access to the contract documents and further provi-sions

Chapter 11

Decisions concerning the award of contracts and notification thereof

Section 74

Decision concerning the award

The contracting authorityentity shall provide in writing the decisions affecting the position of

the candidates and tenderers and the results of the tendering procedure including the grounds for the outcome of the procedure

The decision or the related documentation shall state the factors that fundamentally affected

the outcome including the grounds for rejecting the candidate tenderer or tender and the

grounds on which the accepted contracts were compared As regards a decision concerning

asking for bids for a contract based on a framework arrangement stating the facts showing

that the selection and award criteria have been applied as required under Section 27 shall

suffice If the standstill period referred to in Section 79 applies to the contract the decision or

the related documents shall also state the period of time after which the contract may be awarded

The contracting authorityentity is not required to make a decision referred to in this Section

concerning a contract for the additional supplies referred to in Section 23 or Section 69(4)(12)

and additional service or contract referred to in (13) or the temporary arrangements for a con-tract referred to in Section 95

In contracts based on framework agreements the contracting authorityentity is not required to make the decision referred to in this Section if

1) the contract is awarded in accordance with the conditions laid down in the framework

agreement without asking for bids or

2) the competitive bidding is based on a framework agreement when the value of the contract

does not exceed the EU threshold

33

Section 75

Suspending the contract award procedure

The contract award procedure can be suspended only for verifiable and justifiable reason

The provisions of Section 74 concerning contract ruling shall apply to the suspension of the

contract award procedure

Section 76

Appeal instructions and instructions for request for rectification

Instructions for appeal shall accompany the decisions made by the contracting authori-

tyentity explaining how to refer a case to the Market Court for consideration contact infor-

mation of the contracting authorityentity for the notice referred to in Section 90 and instruc-

tions for seeking rectification (petition instructions) explaining how the candidate or tenderer can have the case submitted for reconsideration through procurement rectification

With regard to the issuing and amending appeal and petition instructions the provisions of

Chapter 3 of the Administrative Judicial Procedure Act (5861996) shall apply in terms of ap-

peals and the provisions of Chapter 7 of the Administrative Procedure Act (4342003) shall

apply in terms of petition instructions

Section 77

Notification of the decision concerning the contract award

The decision of the contracting authorityentity including the grounds for the decision and the

appeal and petition instructions shall be submitted in writing to the parties concerned The de-

cision including the aforementioned documents shall be submitted using the electronic con-

tact information which the candidate or tenderer has given to the contracting authorityentity

When using the electronic contact information the candidate and tenderer shall be considered

to have received notice of the decision and the accompanying documents on the date on

which the electronic message containing the aforementioned documents is available in the re-

cipients reception equipment such that the message can be handled Such a point in time shall

mean the date on which the message was sent unless a reliable explanation concerning the

malfunction of telecommunications links or another analogous reason because of which the

electronic message reached the recipient later When electronic notification is used the con-

tracting authorityentity shall include in the message a separate note concerning the date

when the message was sent

The decision including the grounds for it and the appeal and petition instructions may also be

sent via regular mail under the Administrative Procedure Act Candidates and tenderers shall

be considered to have received notification of the decision and the accompanying documents

on the seventh day from the date on which they were sent unless the candidate or tenderer

proves that the notification occurred at a later date

Notification on the decision of the contracting authorityentity shall be issued without undue

delay at the latest 15 days from the date on which the contracting authorityentity receives a written request concerning notification on the decision that was made

34

Chapter 12

Public contract

Section 78

Concluding a public contract

Having made the decision to award a public contract the contracting authorityentity shall

conclude the contract The contract is concluded upon signing a written agreement

Section 79

Standstill period

In the case of a contract above the EU threshold referred to Section 12 above the contract can

be concluded at the earliest 21 days from the date when the candidate or tenderer received or is considered to have received the decision and instructions for appeal (standstill period)

A standstill period shall not be applied in direct contract awards

The provisions of Section 92 shall apply to the effect of an appeal on concluding a contract

Section 80

Exceptions to the compliance with the standstill period

The standstill period need not be upheld if

1) the contract concerns a procurement carried out on the basis of the framework agreement in accordance with Section 27

2) the contract is awarded to the tenderer who submitted the only acceptable tender and no

other tenderers or candidates remain in the competitive bidding whose position would be af-

fected by the selection of a co-contractor

3) the contract concerns a procurement referred to in Section 68(2)

Section 81

Notification of direct awards and conclusion of public contracts

In direct awards exceeding the EU threshold the contracting authorityentity may after hav-

ing made the award decision send a notice for publication concerning the direct award of con-

tract before concluding the contract In that case the contract can be concluded at the earli-est 14 days after the publication of the notice in the Official Journal of the European Union

Chapter 13

Procurement rectification

Section 82

Rectification of a procurement

The contracting authorityentity may remove an incorrect decision or annul an award decision

made during the contracting procedure concerning the legal status of the candidates or ten-

35

derers and make a new decision (procurement rectification) if the award decision or other deci-

sion reached during the contracting procedure is based on an error that occurred in the appli-cation of the law

Amending an award decision or other decision does not require the consent of the party con-

cerned However an award decision or other decision cannot be amended through procure-

ment rectification if the contract has been concluded

Section 83

Initiation of procurement rectification

The contracting authorityentity may take up a procurement rectification on its own initiative

or in response to a demand of the party in question The contracting authorityentity shall noti-fy the concerned parties immediately of the initiation of a procurement rectification

A subcontractor does not have the status of a concerned party referred to in subsection 1 of this section in terms of the matter concerning the contract

The concerned party shall present the demand within 14 days after receipt of the notification

of the award decision or other decision made by the contracting authorityentity during the

contracting procedure The contracting authorityentity itself may amend the award decision or

other decision no later than 60 days after the date the decision concerning the procurement rectification is made

Appealing the case to the Market Court does not prevent a procurement rectification or its pro-

cessing A procurement rectification may also apply to a decision of the contracting authori-

tyentity that has become legally binding if the case has not been submitted to the Market

Court for ruling

Section 84

Effect of the processing of procurement rectification on the proceedings in the Mar-ket Court

The initiation and processing of a procurement rectification do not affect the time limit within

which the concerned party has the right pursuant to this Act to submit an appeal against the

decision to the Market Court

If the award decision or other decision that was reached during the contract award procedure

is to be amended and has been appealed against before the Market Court the Market Court

shall be notified of the processing of the case through procurement rectification and informed

of the decision reached In processing a procurement rectification the contracting authori-

tyentity may prohibit the enforcement of the award decision or other decision or order it to be

suspended The Market Court shall be notified of a prohibition or suspension of enforcement if an appeal has been lodged against the decision in the Market Court

If the contracting authorityentity amends its award decision or other decision by means of a

procurement rectification such that as a result the appellant to the Market Court no longer has

the need for judicial relief or the need for a justified decision the Market Court may decline to

process such a case without giving a ruling on the principal claim

Section 85

The application of procurement rectification to other contracts

A procurement rectification can also be applied to amend an award decision or other decision

made by the contracting authorityentity during the contracting procedure to which this Act

36

shall not apply pursuant to Section 6(2) and Sections 7 8 or 13 A decision made on account

of such a contract rectification may not be appealed against in the Market Court or under the Administrative Judicial Procedure Act or Local Government (Act 3651995)

Chapter 14

Public access to the contract documents

Section 86

Application of the provisions concerning public access to the contract documents

The Act on the Openness of Government Activities (6211999) shall apply to public access to

the documents of the contracting authorityentity and the fees charged for the documents if

the contracting authorityentity is the authority referred to in Section 4 of the aforementioned

Act or if it is obliged to comply with that Act on the basis of a provision contained elsewhere in the Act

In terms of the right of parties other than the participants in the competitive bidding conducted

by the contracting authorityentity referred to in subsection 1 to have access to the docu-

ments drawn up and received for processing of the tender and the confidentiality obligation of

those employed by the contracting authorityentity the provisions of the Act on the Openness

of Government Activities shall apply to the right of concerned parties to have access to the

document to how public access to the document is determined and to the processing and resolving of the matter concerning access to information

The decision of the contracting authorityentity which has resolved the matter concerning ac-

cess to information can be appealed in accordance with the provisions of Section 33 of the Act

on the Openness of Government Activities The Supreme Administrative Court in whose judicial

district the contracting authorityentity is located is the competent Supreme Administrative

Court for considering the appeal submitted on the basis of a decision made by a party other

than the contracting authorityentity acting as an authority

Chapter 15

Appealing and the implications thereof

Section 87

Parties entitled to appeal

A concerned party may appeal the matter to the Market Court by issuing a complaint A sub-

contractor does not have the position of an interested party referred to in subsection 1 of this Section in terms of the matter concerning the contract

In matters concerning control procedures of the European Union the Ministry of Economic Af-

fairs and Employment may also refer the matter to the Market Court for consideration

Section 88

Object of the appeal

An appeal may be lodged before the Market Court against an award decision of the contracting

authorityentity referred to in this Act or other decision reached by the contracting authori-

tyentity during the contracting procedure which affects the status of the candidate or the ten-derer

37

An appeal may not be lodged before the Market Court against an award decision or other deci-

sion of the contracting authorityentity which concerns only the preparation of the contracting

procedure An appeal may not be lodged against a decision or other measure taken by the

supplier selected as a contracting party concerning a subcontracting agreement or an award

decision or determination made by the contracting authorityentity during the implementation of the contract

A contract based on a framework agreement referred to in Section 27 above and a contract

referred to in Section 68(2) may not be appealed unless a processing authorisation is issued by the Market Court The authorisation shall be issued if

1) the processing of the case is important in terms of applying the Act in other similar matters

or

2) there is a cogent reason for it related to the procedures of the contracting authorityentity

Section 89

Time period for appeal

Unless otherwise prescribed in this Section an appeal must be lodged in writing within 14 days

from the date when the candidate or tenderer received the notice concerning the contract with the instructions for appeal

If the contracting authorityentity has concluded a public contract after the contract decision

was issued on the basis of Section 80 point 1 without complying with the standstill period

the appeal shall be lodged within 30 days from the date when the tenderer has received notice

of the decision with the instructions for appeal

An appeal before the Market Court shall be lodged within six months of the date of the contract

decision provided that the candidate or tenderer has received notice of the contract decision

and the contract decision or appeal instructions were materially deficient or the appeal instruc-tions have been missing altogether

If the contracting authorityentity has with regard to a contract above the EU threshold re-

ferred to in Section 12 above delivered a notice regarding a direct award of contract for publi-

cation in the Official journal of the European Union the complaint must be lodged within 14 days from the publication of the notice

If the notice referred to in subsection 4 has not been published the appeal concerning a direct award of contract shall be lodged

1) within 30 days of the date of publication of a contract-award notice has been published in

the Official Journal of the European Union or

2) within six months from the conclusion of the contract at the latest

Section 90

Notification of appeal to the contracting authorityentity and the list of procurement

cases

The appellant in a contract-related matter must notify the contracting authorityentity in writ-ing of referring the case to the Market Court for consideration

The notification must be delivered to the contracting authorityentity at the latest when the

complaint concerning the contract is delivered to the Market Court The notification shall be delivered to the address provided by the contracting authorityentity

38

The Market Court shall maintain and publish a list which is as comprehensive and up-to-date

as possible of contract-related matters pending at the Market Court

Section 91

The contracting authorityentity as the opponent and compensation of legal costs

In the proceedings regarding contract-related matters the contracting authorityentity shall be considered the opponent of the party or agency lodging the appeal

The provisions of Section 74 subsections 1 and 2 of the Administrative Judicial Procedure Act shall apply to the compensation of legal costs regarding contract-related matters

The provisions of Section 74 subsections 1 and 2 of the administrative Judicial Procedure Act

concerning public authorities or other public parties shall apply to the decision concerning the

liability to provide compensation for the legal costs of the opponent If one contracting authori-

tyentity has been responsible for the contracting procedure on behalf of the other contracting

authorities the obligation regarding compensation of legal costs may be placed on the con-

tracting authorityentity which acted on behalf of the other contracting authorities

Section 92

The effect of the appeal on concluding the contract

In case of a contract where the standstill period or the time limit referred to in section 81 must

be observed the contracting authorityentity may not conclude the contract if the matter has

been brought up for consideration by the Market Court

If the Market Court decides a case concerning enforcement or decides on the principal claim

before the standstill period or the time limit referred to in Section 81 has expired the contract-

ing authorityentity shall observe the standstill period or the time limit referred to in Section

81 until the end of the period notwithstanding the ruling of the Market Court

Section 93

Interim decisions of the Market Court

While the appeal is under consideration the Market Court may prohibit suspend or allow the

implementation of the decision concerning the contract award or order the contracting proce-

dure to be suspended otherwise as an interim measure for the duration of the proceedings in the Market Court

When deciding on the measure referred to in subsection 1 the Market Court shall take into

consideration that the harm caused by the measure to the opponent the rights of third par-

ties the security of the state or the public interest may not outweigh its benefits

However the decision prescribed in subsection 1 of this Section cannot be carried out in the case of a contract referred to in Section 68(2) of this Act

A legally trained member of the Market Court may alone issue a ruling as an interim measure

Section 94

Interim commitment of the contracting authorityentity

While the appeal is under consideration the contracting authorityentity may provide a written

undertaking to the Market Court stating that it will not enforce the decision concerning the contract for as long as the matter is pending in the Market Court

39

If the contracting authorityentity provides the Market Court with the undertaking referred to

in subsection 1 the Market Court will not issue without a specific reason a decision on the

obligation to interim prohibition on implementing the decision to award the contract

Section 95

Temporary organisation of a contract

If an appeal has been lodged against a contract before the Market Court the contracting au-

thorityentity may temporarily organise the contract by ordering it from a supplier who partici-

pated in the contracting procedure or from a previous supplier if the nature of the contract is

such that executing the contract cannot be postponed for the duration of the Market Court pro-ceedings

Temporary contract arrangements must not hinder the execution of the following items by means of a decision of the Market Court

1) the decision of the contracting authorityentity to cancel the contract in full or in part

2) prohibit the contracting authorityentity from applying any erroneous item included in the contract document or otherwise complying with an incorrect procedure or

3) require the contracting authorityentity to rectify its incorrect procedure

Section 96

Sanctions imposed by the Market Court

If during the contract procedure actions have been taken which are against this Act or the provisions based thereon or against European Union legislation the Market Court may

1) cancel the decision of the contracting authorityentity in full or in part

2) prohibit the contracting authorityentity from applying any erroneous item included in the contract document or otherwise complying with an incorrect procedure

3) require the contracting authorityentity to correct its erroneous procedure

4) order the contracting authorityentity to pay a compensatory fee to the party which would

have had a genuine chance to win the bidding competition had the procedure been correct

5) impose an ineffectiveness sanction on the contracting authorityentity

6) order the contracting authorityentity to pay an infringement fine to the state

7) reduce the contract term to end after a period of time specified by the Market Court has

passed

The provisions of Sections 97ndash100 shall apply to determining the sanctions mentioned in sub-

section 1 points 4ndash7 above When determining these sanctions the Market Court may consid-

er the contract to have been concluded on the basis of specific circumstances provided that

the contracting authorityentity has especially commenced the implementation of the contract

The ineffectiveness sanctions infringement fine and reduction of contract terms may only be

issued in contracts exceeding the EU thresholds referred to in Section 12 However an ineffec-tiveness sanction cannot be imposed in a service contract in accordance with Annex B

Only a compensatory fee can be imposed in a contract referred to in Section 68(2) of this Act

40

Section 97

Compensation

Provision for compensation may be made if the harm caused to the contracting authori-

tyentity rights of third parties state security and the public interest by the measure defined

in Section 96(1)(1ndash3) is considered to outweigh the benefits or if the petition has been initiat-

ed following the conclusion of the contract With respect to setting the amount of the compen-

satory fee account shall be taken of the nature of the infringement or omission by the con-

tracting authorityentity the value of the contract in question and the costs and damages in-

curred by the petitioner The Market Court may however decide not to prove for compensa-

tion if the contracting authorityentity has refrained from implementing the contract during the proceedings in the Market Court

Without a specific reason the amount of compensation shall not exceed 10 percent of the val-

ue of the contract

Section 98

Ineffectiveness

The Market Court may declare a contract ineffective if

1) the contracting authorityentity has made a direct award of contract without the basis re-ferred to in this Act and the procedures referred to in Section 81

2) the contracting authorityentity has concluded the contract although there is an obligation in the contract to observe a standstill period

3) the contracting authorityentity has concluded the contract contrary to Section 92 although

the procurement case has been submitted to the Market Court for a decision

In addition a requirement in the situation referred to in subsection 1 points 2 and 3 above is

that the contracting authorityentity has made another infringement contrary to this Act which has affected the chances of the appellant to win the contract

If the contracting authorityentity has concluded the contract in a competition based on the

framework agreement on the basis of Section 80 without observing the standstill period and if

a breach has been committed in the competition in respect of Section 27(2 or 3) such that this

has affected the chances of the appellant to win the contract the Market Court may declare the contract ineffective

The Market Court shall decide to which contractual obligations ineffectiveness shall apply Inef-

fectiveness shall apply only to unfulfilled contractual obligations

Section 99

Non-imposition of ineffectiveness

In the situations referred to in Section 98 above the Market Court may decide not to impose

ineffectiveness for compelling reasons related to the public interest or state security Economic

interests which are directly related to the contract may be deemed compelling only if ineffec-tiveness of the contract would exceptionally have inequitable consequences

The Market Court may not impose ineffectiveness if it would result in serious endangerment of

the implementation of a defence and security project essentially important with respect to

state security

Section 100

41

Infringement fines and reduction of the contract term

The Market Court may order a contracting authorityentity to pay the state an infringement

fine if

1) the Market Court has declared the contract ineffective

2) the contracting authorityentity has concluded the contract although there is an obligation in the contract to observe a standstill period

3) the contracting authorityentity has concluded the contract contrary to Section 92 although the procurement case has been submitted to the Market Court for a decision or

4) the Market Court has decided not to declare the contract ineffective for compelling reasons related to the public interest or state security in accordance with Section 99

In the situation referred to in subsection 1 point 4 above the Market Court may in addition to

or instead of imposing a sanction reduce the contract term so that it ends after a period of time specified by the Court

The Market Court may order a contracting authorityentity to pay the state an infringement

fine or reduce the contract term so that it ends after a period of time specified by the Court

this applies to service contracts referred to in Annex B of this Act the value of which exceeds

the EU threshold as defined in Section 12 if the contracting authorityentity

1) has made a direct award of contract without the basis referred to in this Act and the proce-dures referred to in Section 81 not having been complied with in the direct award

2) has concluded the contract although there is an obligation in the contract to observe the standstill period

3) has concluded the contract contrary to Section 92 although the procurement case has been submitted to the Market Court for a decision or

4) has concluded the contract in a competition based on a framework agreement on the basis

of Section 80 without observing the standstill period and if a breach has been committed in the

competition in respect of Section 27(2 or 3) such that this has affected the chances of the ap-pellant to win the contract

In addition a requirement in the situation referred to in subsection 3 points 2 and 3 above is

that the contracting authorityentity has made another infringement contrary to this Act which

has affected the chances of the appellant to win the contract

With respect to issuing a sanction the Market Court shall take into account the nature of the

mistake or omission by the contracting authorityentity and the value of the contract in ques-

tion The sanction shall not exceed 10 percent of the value of the contract

Section 101

Allocation of sanctions and cumulative effect

If one contracting authorityentity has been responsible for the contracting procedure on be-

half of the other contracting authorities the obligation to compensate for legal costs can be

placed on the contracting authorityentity that acted on behalf of the other contracting authori-

ties

With respect to the sanctions referred to in this Act the Market Court shall take into considera-

tion that the cumulative effect may not become unreasonable for the contracting authori-

tyentity or its contracting party

42

Section 102

Conditional fine

The Market Court may impose a conditional fine in order to underline the importance of com-

plying with the prohibitions or obligations referred to in this Act The provisions of the Act on

Conditional Fines (11131990) shall apply to the imposing of and sentencing to the payment of

conditional fines

If one contracting authorityentity has been responsible for the contracting procedure on be-

half of the other contracting authorities the obligation to compensate for costs can be placed

on the contracting authorityentity that acted on behalf of the other contracting authorities

Section 103

Notification of the Market Courts ruling

The ruling of the Market Court along with the instructions for appeal shall be verifiably notified under the provisions of the Administrative Judicial Procedure Act

With the consent of the appellant and the contracting authorityentity the Market Courts deci-

sion together with the instructions for appeal may be publicised using the electronic contact

information the aforementioned parties have provided to the Market Court

When electronic contact information is used the appellant and the contracting authorityentity

shall be deemed to have been notified of the decision and instructions for appeal on the date

on which the message concerning the matter is available in the recipientsrsquo reception equipment

so that the message can be handled The provisions of Section 77(1) shall apply to electronic

notification

Section 104

Prohibition to appeal

A case that is within the jurisdiction of the Market Court cannot be appealed against under the

provisions of the Local Government Act or the Administrative Judicial Procedure Act

A decision or ruling concerning a contract which has been excluded from the scope of applica-

tion of this Act on the basis of Section 6(2) and Sections 78 or 13 may not be appealed under

the Administrative Judicial Procedure Act or the Local Government Act The subcontractor may

not under the Administrative Judicial Procedure Act or the Local Government Act appeal the

decision or action taken by the contracting authorityentity concerning the subcontract

Section 105

Appeals against the decisions of the Market Court

Appeals against a ruling of the Market Court can be lodged in the Supreme Administrative Court in accordance with the Administrative Judicial Procedure Act

As referred to in Section 93(1) an appeal cannot be lodged against the ruling by the Market

Court in the Supreme Administrative Court A ruling by the Market Court does not prevent the

case from being reconsidered by the Market Court if the grounds for the previous ruling have

changed

If the Market Court has ruled that it will not grant the processing authorisation referred to in

Section 88(3) then an appeal against this ruling can only be lodged if the Supreme Adminis-

trative Court grants a leave to appeal

43

Section 106

Application of the Administrative Judicial Procedure Act

The Administrative Judicial Procedure Act shall apply to appeals unless otherwise provided by this Act

Section 107

Implementation of rulings

A ruling of the Market Court has to be observed notwithstanding any appeal unless the Su-

preme Administrative Court orders otherwise The ruling of the Market Court issuing the sanc-

tion referred to in Section 96(1)(4ndash7) may only be implemented on the basis of a final ruling

The implementation of a ruling concerning a sanction shall be supervised by the Legal Register

Centre The Legal Register Centre must be informed of any ruling by the Market Court and

Supreme Administrative Court to issue a sanction

Section 108

Compensation for damages

Those who cause damage to a candidate tenderer or supplier shall be liable to pay compensa-

tion for the damage they have caused while acting in breach of this Act or any regulations based thereon or the European Union law

However when the claim for damages refers to costs incurred as a result of the tendering pro-

cedure the candidate or tenderer is entitled to compensation if it can provide proof of the in-

correct procedure as defined in subsection 1 and that had the procedure been correct it would have had a genuine chance to win the contract

In respect of the cases defined in subsection 1 and 2 a Court of first instance shall be the

competent court in accordance with Chapter 10 of the Code of Judicial Procedure

Chapter 16

Further provisions

Section 109

Disclosure of information

Notwithstanding the provisions concerning confidentiality provided for in the Act on the Open-

ness of Government Activities or in any other act the contracting authorityentity shall supply

statistics and other information concerning the different stages of the contract and performed

contracts to the Finnish authorities and European Union bodies to monitor contracts and ex-

change information on the scale and to the time limit required by European Union law Pursu-

ant to this Act the Ministry of Economic Affairs and Employment has the right to forward in-

formation it has received to the European Union authorities notwithstanding the regulations on confidentiality

The contracting authorityentity shall draw up a written report on each contract and framework

agreement which includes essential information on the contract contract procedure and the

candidates and tenderers who participated as well as on the decisions made in connection with

44

the contract The report and its main content shall be forwarded on request to the European

Commission A separate report is not required if corresponding information can be found in the

contract decision or other documents

To document the course of the realised contract procedure the contracting authorityentity

shall implement necessary measures in an electronic format

More specific rules are laid down in a Government decree on the obligation to provide statistics

and the responsibility of the contracting authorityentity to draw up reports on contract proce-

dures and contract decisions as referred to in subsection 1 which are to be forwarded to the

European Union bodies

Section 110

Entry into force and transitional provisions

This Act enters into force on 1 January 2012

If a contract procedure is started before the entry into force of this Act the provisions that

were in force at the time when this Act entered into force shall be applied The contract proce-

dure shall be deemed to have commenced when the contract notice was published A contract

which does not require the publication of the contract notice shall be deemed to have com-

menced when the invitation to tender or a meeting is sent or negotiations with suppliers begin

Measures necessary for the implementation of this Act may be undertaken before the Actrsquos

entry into force

45

ANNEX A

Primary services

Group No

Matter CPV Reference No

1 Maintenance and repair services 50000000-5 50100000-6-50884000-4 (except 50310000-1-50324200-4 and 50116510-9 50190000-3 50229000-6 50243000-0) and 51000000-9-51900000-1

2 Services related to international military assistance

75211300-1

3 Defence services military defence services and civil defence services

75220000-4 75221000-1 75222000-8

4 Investigation and security services 79700000-1-79720000-7

5 Land transport services 60000000-8 60100000-9-60183000-4 (except 60160000-7 60161000-4) and 64120000-3-64121200-2

6 Air transport services for passengers and freight except transport of mail

60400000-2 60410000-5-60424120-3 (except 60411000-2 60421000-5) 60440000-4-60445000-9 and 60500000-3

7 Transport of mail by land and by air 60160000-7 60161000-4 60411000-2 60421000-5

8 Railway transport services 60200000-0-60220000-6

9 Sea transport services 60600000-4-60653000-0 and 63727000-1-63727200-3

10 Support and auxiliary transport services 63100000-0-63111000-0 63120000-6-63121100-4 63122000-0 63512000-1 and 63520000-0-6370000-6

11 Telecommunications services 64200000-8-64228200-2 72318000-7 and 72700000-7-72720000-3

12 Financial services insurance services 66500000-5-66720000-3

13 Data-processing and related services 50310000-1-50324200-4 72000000-5-72920000-5 (except 72318000-7 and 72700000-7-72720000-3) 79342410-4 9342410-4

14 Research and development services(sup1) and evaluation tests

73000000-2-73436000-7

15 Accounting auditing and bookkeeping services

79210000-9-79212500-8

16 Management consulting(sup2) and related services

73200000-4-73220000-0 79400000-8-79421200-3 and 79342000-3 79342100-4 79342300-6 79342320-2 79342321-9 79910000-6 79991000-7 98362000-8

17 Architectural services engineering services and integrated engineering services urban planning and landscape architectural services related scientific and technical consulting services technical testing and analysis services

71000000-8-71900000-7(except 71550000-8) and 79994000-8

18 Building cleaning services and building and property management services

70300000-4-70340000-0 and 90900000-6-90924000-3

19 Sewage and refuse disposal services 90400000-1 to 90743200-9 (except 90712200-3)

46

sanitation and similar services 90910000-9-90920000-2 and 50190000-3 50229000-6 50243000-0

20 Training and simulation services in the fields of defence and security

80330000-6 80600000-0 80610000-3 80620000-6 80630000-9 80640000-2 80650000-5 80660000-8

(sup1) Except the research and development services referred to in Section 13(2)(5) (sup2) Except arbitration and conciliation services ANNEX B Secondary services

Group No

Matter CPV Reference No

21 Hotel and restaurant services 55100000-1-55524000-9 and 98340000-8-98341100-6

22 Support and auxiliary transport services 63000000-9-63734000-3 (except 63711200-8 63712700-0 63712710-3) 6372700-1-63727200-3 and 98361000-1

23 Legal services 79100000-5-79140000-7

24 Employment and personnel recruitment services(sup1)

79600000-0-79635000-4 (except 79611000-0 79632000-3 79633000-0) and 98500000-8-98514000-9

25 Health and social services 79611000-085000000-9 and -85323000-9 (except 85321000-5 and 85322000-2)

26 Other services

(sup1) Except employment contracts

47

ANNEX C NACEsup1ordm

Main category F CONSTRUCTION CPV code

2-digit level

3-digit level

4-digit level

Description Comments

45 Construction This two-digit level includes the following construction of new buildings and works reconstruction and common repairs

45000000

451 Site preparation

45100000

4511 Demolition and wreck-ing of buildings earth moving

This four-digit level includes the following - demolition of buildings and other structures - clearing of building sites and earth moving site excavation landfill and levelling trench dig-ging quarrying blasting etc - site preparation for mining

- overburden removal and other development and prepa-ration of mines and mining sites

This four-digit level also includes - building site underdrainage - drainage of agricultural or forestry land

45110000

4512 Test drilling This four-digit level includes the following - test drilling test boring and sampling for construction geophysical geological or similar purposes This four-digit level excludes the following - drilling of oil or gas wells comp 1120 - water well drilling 4525

45120000

sup1deg Council regulation (EEC) No 303790 (Official Journal of the European Union 293 24 October 1990 p 1) on the statistical classification of economic activities in the European Community issued on 9 October 1990 regulation as amended by Commission Regulation (EEC) No 76193 (Official Journal of the European Union L 83 3 April 1993 p 1) If there are differences of opinion between CPV and NACE NACE nomenclature shall apply

48

- shaft sinking comp 4525 - oil and gas field exploration geophysical geological and seismic surveying comp 7420

452 Building complete constructions or parts thereof

45200000

4521 Building work This four-digit level includes the following - Construction of all types of buildings - civil engineering and hydraulic engineering works - building of bridges including those for elevated highways metro tunnels - construction of long-distance pipelines communication cables and long-distance networks for power lines - construction of long-distance pipelines telecommunication ca-bles and municipal network power lines related installation work - on-site assembly and erection of pre-fabricated constructions This four-digit level excludes the following - services related to oil and gas extraction comp 1120 - erection of complete prefabricat-ed constructions from self-manufactured parts not of con-crete comp 20 26 28 - construction work other than buildings for stadiums swimming pools gymnasiums tennis courts golf courses and other sports installations comp 4523 building installation comp 453 - building completion comp 454 - architectural and engineering services comp 7420 - project management for construction comp 7420

45210000 Except 45213316 45220000 45231000 45232000

4522 Erection and covering of roofs

This four-digit level includes the following - erection of roofs - roof covering - waterproofing

45261000

49

4523 Construction of highways streets airports and sports equipment

This four-digit level includes the following - construction of highways streets other vehicular and pedestrian ways - construction of railways - construction of airfield runways - construction work other than build-ings for stadiums swimming pools gymnasiums tennis courts golf courses and other sports installations - painting of markings on road surfaces and car parks This four-digit level excludes the following - preliminary earth moving comp 4511

45212212 and DA03 45230000 except 45231000 45232000 45234115

4524 Construction of water projects

This four-digit level includes the following building works - construction of waterways harbour and river works marinas locks etc - construction of dams and breakwaters - dredging - subsurface work

45240000

4525 Other construction work

This four-digit level includes the following - construction activities specialising in one aspect common to different kinds of structures requiring specialised skill or equipment - construction of foundations including pile driving - water well drilling and construction shaft sinking - erection of non-self-manufactured steel frame elements - steel bending - bricklaying and stone setting - erecting and dismantling of scaffolds and work platforms including rental of scaffolds and work platforms - erection of chimneys and industrial ovens This four-digit level excludes the following - rental of scaffolds without erecting and dismantling comp 7132

45250000 45262000

453 Building installation 45300000

4531 Installation of electri-cal wiring and fittings

This four-digit level includes the installation in buildings or other

45213316 45310000

50

construction projects of - electrical wiring and fittings - telecommunications systems - electrical heating systems - residential antennas - fire alarms - burglar alarm systems - lifts and escalators - lightning conductors etc

Except 45316000

4532 Insulation work This four-digit level includes the following - installation in buildings or other construction projects of thermal sound or vibration insulation This four-digit level excludes the following - waterproofing comp 4522

45320000

4533 Plumbing This four-digit level includes the installation in buildings or other construction projects of the following - plumbing and sanitary equipment and fittings - gas fittings - heating ventilation refrigeration or air-conditioning equipment and ducts - sprinkler systems This four-digit level excludes the following - installation of electrical heating systems comp 4531

45330000

4534 Other installation work

This four-digit level includes the fol-lowing - installation or other construction of illumination and signalling systems for roads railways airports and harbours - installation in buildings or other construction projects of fittings and fixtures

45234115 45316000 45340000

454 Building completion 45400000

4541 Plastering This four-digit level includes the following - application in building or other construction projects of interior and exterior plaster or stucco and other similar lathing materials

45410000

4542 Joinery installation This four-digit level includes the following - installation of non-self-manufactured doors windows door

45420000

51

and window frames fitted kitchens staircases and shop fittings made of wood or other materials - completion of interiors such as ceilings wooden wall coverings wall paneling installation of movable partitions etc This four-digit level excludes the following - laying of parquet and other wooden floor coverings comp 4543

52

4543 Floor covering and wall upholstery

This four-digit level includes the following - covering or tiling of buildings or other structures using - ceramic concrete or stone wall or floor tiles or stones - parquet or other wooden floor covering - wall-to-wall carpeting or linoleum also rubber or plastic floor covering - wall or floor covering made of mosaic marble granite or slate - wallpaper

45430000

4544 Painting and glazing This four-digit level includes the following - interior and exterior painting of buildings - exterior painting of other structures - installation of mirrors glass etc This four-digit level excludes the following - installation of windows comp 4542

45440000

4545 Other building completion

This four-digit level includes the following - construction of private swimming pools - cleaning the exterior surfaces of buildings using steam sandblasting or other similar method - other building completion work not classified elsewhere This four-digit level excludes the following - cleaning of buildings and other structures comp 7470

45212212 and DA03 45450000

455 Rental of construction or dismantling equip-ment with operators

45500000

4550 Rental of construction or dismantling equip-ment with operators

This four-digit level excludes the following - rental of construction or dismantling machines and equipment without operators comp 7132

45500000

17

Section 37

Technical specifications of contracts

Technical specifications concerning the content of the contract shall be stated in the contract

notice or the invitation to tender Technical specifications shall afford equal access to tenderers

to participate in the competitive bidding Technical specifications may not unjustifiably restrict competitive bidding for public defence and security contracts

Technical specifications shall be formulated

1) by reference to the following definitions in the order of priority whereupon the wording or equivalent shall be added to the reference

a) a Finnish standard in a field other than defence or other national standard enforcing a Eu-

ropean standard

b) European technical approval

c) a common technical specification in a field other than defence

d) a national standard in a field other than defence enforcing an international standard

e) another international standard in a field other than defence

f) another technical system of reference drawn up by the European standardisation bodies or

when these do not exist a technical specification related to other than a national standard in

the field of defence national technical approval or national design calculation and the execu-tion of works and the manufacture of products

g) a technical specification in a field other than defence which originates in the industry and is widely approved or

h) a national defence standard and defence materiel specification which resembles the stand-

ard in question

2) on the basis of requirements concerning performance or functional characteristics which are sufficiently precise to allow the definition of the object and award of the contract

3) by reference to the technical specifications mentioned in point 1 for certain characteristics and by reference to the requirements mentioned in point 2 for certain characteristics or

4) on the basis of performance or functional requirements by reference to the technical specifi-

cations in accordance with point 1 by means of their presumed conformity with the require-

ments related to performance or functional characteristics

Notwithstanding the provisions laid down in subsection 2 above technical specifications may

be drawn up to take into account compulsory national technical regulations or technical re-

quirements relating to for example product safety which the state must fulfil on the basis of international standardisation agreements

Technical specifications shall not refer to a specific manufacturer or source of products Tech-

nical specifications shall not refer to trade marks patents product types origin a specific

method or production having the effect of favouring or discriminating against certain suppli-

ers or products Such reference shall be permitted on an exceptional basis only where a suffi-

ciently precise and intelligible description of the object of the contract is not otherwise possi-

ble Such reference shall be accompanied by the wording or equivalent

Section 38

Technical specifications concerning environmental characteristics

The performance and functional requirements referred to in Section 37(2)(2) above may in-

clude requirements concerning environmental characteristics The contracting authorityentity

may use the detailed specifications or if necessary parts thereof as defined by European or multinational eco-labels or another eco-label

Conditions for the use of the specifications or parts thereof as defined by eco-labels are

1) those specifications are appropriate to define the characteristics of the supplies or services that are the object of the contract

18

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

3) stakeholders such as public authorities consumers manufacturers representatives of re-

tail trade and environmental organisations can participate in drawing up the label and

4) the label is accessible to all interested parties

The contracting authorityentity may indicate that the products or services bearing a particular

eco-label are considered to comply with the requirements for environmental characteristics

However the contracting authorityentity must accept another appropriate means of proof

submitted by the tenderer such as a technical dossier of the manufacturer or a technical re-

port drawn by a recognised body

Section 39

Alternative tenders

Where the criterion for the award is that of the financially most advantageous tender the con-

tracting authorityentity may accept alternative tenders provided that the contract notice indi-cates that presentation of alternative tenders is permitted

The alternative tender must satisfy the minimum requirements set in the invitation to tender

and the requirements for presenting alternatives The alternative tender can be accepted if it

fulfills the aforementioned requirements set out in the invitation to tender

If the contracting authorityentity has indicated that it shall accept the submission of alterna-

tive tenders it may not reject the alternative on the sole ground that it would lead to a service contract instead of a supply contract or a supply contract instead of a service contract

Section 40

Special conditions relating to public contracts

The contracting authorityentity may lay down special conditions relating to the performance of

a contract which may concern in particular information security security of supply subcon-

tracting or environmental and social aspects compliance with the provisions of the Interna-

tional Labour Organisation (ILO) working conditions and the terms of employment provided

that the conditions are non-discriminatory and compatible with Community law and that they are indicated in the contract notice or invitation to tender

Section 41

Requirements concerning information security

If the object of the contract requires produces or otherwise deals with documents containing

classified information the contracting authorityentity can lay down to tenderers the measures

or requirements necessary to protect such information The contracting authorityentity may

require from the tenderer a commitment and information which show their ability to fulfil in-

formation security requirements Information security related requirements and commitments

and information to be provided shall be indicated in the contract notice or invitation to tender

The contracting authorityentity may as required carry out and take into consideration any

supplemental investigations it has conducted

Section 42

Requirements concerning security of supply

The contracting authorityentity shall define its requirements concerning security of supply in

the contract notice or invitation to tender

The contracting authorityentity may require that the tender shall contain inter alia the fol-

lowing

19

1) certification or documentation demonstrating to the contract entitys satisfaction that the

tenderer will be capable of complying with the requirements concerning the export transfer

and transit of the products associated with the contract including any documentation applica-

ble thereto and received from one or more states

2) a notice from the tenderer concerning any restrictions on the assignment transfer or use of

the products or services or the results thereof arising from export control or information secu-

rity arrangements

3) certification or documentation demonstrating that the organisation and location of the ten-

derers supply chain will be capable of complying with the requirements concerning security of

supply stated in the contract notice or invitation to tender and a commitment to ensure that

any changes in the supply chain during the execution of the contract will not adversely affect

compliance with these requirements

4) a commitment from the tenderer to establish or maintain ndash in accordance with conditions to

be separately agreed ndash the capacity necessary to meet additional requirements as required by

the contracting authorityentity as a result of a crisis situation

5) any supplementary documentation received from the tenderers national authorities regard-

ing the fulfilment of the requirement under point 4

6) a commitment from the tenderer to carry out the maintenance modernisation or adaptation

of the products that are the object of the contract

7) a commitment from the tenderer to inform the contracting authorityentity in due time of

any changes in its organisation supply chain or strategy that may affect its obligations to the

contracting authorityentity

8) a commitment from the tenderer to deliver to the contracting authorityentity in accord-

ance with the agreed conditions all necessary special equipment needed for the production of

spare parts components assemblies and special testing equipment including technical draw-

ings licenses and instructions for use in the event that the tenderer is no longer able to pro-

vide these products

The tenderer may not be required to obtain a commitment from a European Union member

state that would restrict the right of that member state to apply ndash in accordance with relevant

international or European Union laws ndash the licensing criteria for its national export transfer or

transit of goods under the conditions prevailing at the time of such licensing decision

Section 43

Obligations relating to taxation environmental protection employment protection and provisions on working conditions

The contracting authorityentity may specify in the invitation to tender those authorities from

which the tenderer may obtain information on the obligations relating to taxation environmen-

tal protection employment protection working conditions or the provisions on working condi-

tions The contracting authorityentity shall request the tenderers to state that they have tak-en the aforementioned obligations into consideration when drawing up their tender

The provisions of subsection 1 do not affect the obligations to examine the tenders referred to in Section 58 that are exceptionally low in price

Section 44

Demonstration of compliance with tender requirements

The tenderer shall in its tender demonstrate that the product service or works contract it is

applying for meets the requirements set in the invitation to tender Tenders which do not meet

20

the requirements set in the tendering procedure or the invitation to tender shall be excluded

from the competitive bidding

If the contracting authorityentity has drawn up the technical specifications in accordance with

Section 37(2)(1) and the tenderer in its tender indicates ndash in a way which is satisfactory to

the contracting authorityentity ndash that the product service or work it offers meets the re-

quirements set by the contracting authorityentity the contracting authorityentity may not

reject the tender on grounds that the product service or work that complies with the tender

does not meet the technical specifications referred to by the contracting authorityentity As

proof the tenderer may use for example the manufacturers technical documentation or a

technical report issued by a recognised body located in Finland or in another European Union member state

If the contracting authorityentity has drawn up the technical specifications on the basis of the

requirements concerning performance capacity or functional characteristics it may not reject

the tender on grounds of the tender not meeting the requirements set provided that the prod-

uct service or work being offered complies with a nationally enforced European standard Eu-

ropean technical approval official technical definition international standard or technical refer-

ence and these technical specifications apply to the requirements set for the performance ca-

pacity or functional characteristics stated in the invitation to tender The tenderer must indi-

cate in its tender in a way satisfactory to the contracting authorityentity that the product

service or work that conforms to the standard fulfills the criteria set by the contracting authori-

tyentity for performance capacity and functional characteristics As proof the tenderer may

use for example the manufacturers technical documentation or a technical report issued by a recognised body located in Finland or in another European Union member state

Section 45

Communication

Notifications and exchanges of information relating to a public contract shall be submitted ei-

ther by mail telefax or by electronic means according to the choice of the contracting authori-

tyentity The means of communication chosen must be in common use and not restrict the

tenderers access to the tendering procedure

The electronic tools used for communicating information as well as their technical characteris-

tics must be non-discriminatory generally available and compatible with information and

communication technology products in general use The contracting authorityentity may re-

quire that electronic signatures in tenders and requests to participate meet the requirements

laid down in the Act on Strong Electronic Identification and Electronic Signatures (6172009)

Communication and the exchange and storage of information shall be carried out in such a way

as to ensure that the integrity of data and the confidentiality of the requests to participate and

tenders are preserved The contracting authorityentity shall ensure that the content of the

tenders and requests to participate is not revealed before the time-limit set for submitting

them The contracting authorityentity shall inform in the contract notice of possible require-

ments concerning information exchange

More specific provisions concerning the methods of communication and technical and other

requirements for electronic communication are laid down in a Government decree

Chapter 8

Selection of candidates and tenderers and selection of tenders

Section 46

Assessment of the suitability of candidates and tenderers

Exclusion from competitive bidding of candidates and tenderers assessment of the suitability

of candidates and tenderers and in line with Sections 47 to 56 the selection of tenderers shall

be carried out before the tenders are compared However a candidate or tenderer may be

excluded from participation in the competitive bidding in accordance with Section 47 or 48

21

even later during the competition when the contracting authorityentity has been made aware

of the criterion for exclusion

Section 47

Exclusion from the competition of candidates and tenderers convicted of certain of-fences

The contracting authorityentity shall make a decision to exclude a candidate or tenderer from

the competitive bidding if it has become aware that the candidate or tenderer or director or

any person having powers of representation decision or control has been the subject of a con-

viction by judgment that has obtained the force of res judicata and is specified in a criminal record for one or more of the reasons listed below

1) participation in the activities of a criminal organisation as defined in Chapter 17 Section 1 a of the Criminal Code of Finland (391889)

2) bribery as defined in Chapter 16 Section 13 aggravated bribery as defined in Chapter 16

Section 14 or bribery in business as defined in Chapter 30 Section 7 of the Criminal Code of

Finland

3) tax fraud as defined in Chapter 29 Section 1 or aggravated tax fraud as defined in Chapter

29 Section 2 subsidy fraud as defined in Chapter 29 Section 5 aggravated subsidy fraud as

defined in Chapter 29 Section 6 subsidy misuse as defined in Chapter 29 Section 7 of the Criminal Code of Finland

4) an offence committed with terrorist intent as defined in Chapter 34 a Section 1 of the Crim-

inal Code of Finland preparations for an offence to be committed with terrorist intent as de-

fined in Section 2 leading a terrorist group as defined in Section 3 advancing the activities of

a terrorist group as defined in Section 4 providing training for the purpose of committing a

terrorist offence as defined in Section 4 a recruitment for the purpose of committing a terror-

ist offence as defined in Section 4 b and instigation aiding and abetting or attempt to com-mit the offences mentioned above

5) money laundering as defined in Chapter 32 Section 6 aggravated money laundering as

defined in Section 7 or financing terrorism as defined in Chapter 34 a Section 5 of the Crimi-

nal Code of Finland or

6) work discrimination through undue influence as defined in Chapter 47 Section 3 a of the

Criminal Code

A candidate or tenderer convicted to pay a corporate fine referred to in Chapter 9 of the Crimi-nal Code shall also be excluded from the competitive bidding

The contracting authorityentity shall exclude a candidate or tenderer from the competitive

bidding if the candidate or tenderer has been the subject of a conviction by judgment that has

the force of res judicata in another state for reasons analogous to those mentioned in subsec-

tion 1 In a European Union member state the provisions shall apply to the following crimes defined in European Union Law

1) participation in a criminal organisation as defined in Article 2(1) of the Council Joint Action

98773JHA on making it a criminal offence to participate in a criminal organisation in the

member states of the European Union

2) corruption as defined in Article 3 of the Council Act of 26 May 1997 drawing up on the ba-

sis of Article K3(2)(c) of the Treaty on European Union the Convention on the fight against

corruption involving officials of the European Communities or officials of member states of the

European Union and Article 2(1)(a) of the Council Framework Decision 2003568JHA on com-

bating corruption in the private sector

3) fraud within the meaning of Article 1 of the Convention relating to the protection of the fi-nancial interests of the European Communities

4) a terrorist offence as defined in Article 1 of the Council Framework Decision 2002475JHA

an offence associated with terrorist activities as defined in Article 3 or instigation aiding and abetting or attempt as defined in Article 4 and

22

5) money laundering as defined in Article 1 of Council Directive 91308EEC on prevention of

the use of the financial system for the purpose of money laundering or financing of terrorism

A derogation from the requirement to exclude from the participation in competitive bidding a

candidate or tenderer who has been the subject of a conviction for a reason referred to in this

Section may be provided for overriding requirements in the general interest or subject to the

condition that the convicted person no longer holds a responsible position in the undertaking submitting the tender

Section 48

Other criteria for exclusion

The contracting authorityentity may make the decision to exclude from participation in com-petitive bidding a candidate or tenderer which

1) is bankrupt or is being wound up or has ceased operations where it has entered into an

arrangement with creditors or a reorganisation plan or is in an analogous situation arising from a similar procedure under the law

2) is the subject of proceedings for declaration of bankruptcy for an order for compulsory

winding up or of proceedings for other procedures referred to in point 1

3) has been convicted by judgment that has the force of res judicata of any offence concerning hisher professional conduct such as breaching the obligations concerning export control

4) has been guilty of grave professional misconduct such as breaching its obligations concern-

ing information security and security of supply or a similar offence in association with a previ-ous contract which the contracting authorityentity can prove

5) whose reliability has been proven to be inadequate to the degree where a risk to national

security cannot be excluded

6) has not fulfilled obligations to pay taxes or social security contributions in Finland or in the

country in which it is established or

7) is guilty of serious misrepresentation in supplying the information to the contracting au-

thorityentity required to apply the provisions of this Chapter or has neglected to provide the required information

The provisions laid down in subsection 1 points 3 and 4 shall apply in cases where the person

guilty of a mistake or negligence is a director or any person having powers of representation

decision or control in respect of the candidate or tenderer The decision on the exclusion may

take account of other matters such as the seriousness of the offence or omission the connec-

tion with the object of the contract the time lapsed any other implications of the offence and

any remedial action taken by the person convicted of the offence or omission

Section 49

Verification of the criteria for exclusion

The contracting authorityentity may request that the candidates and tenderers and the com-

petent authorities of other European Union member states in accordance with the appropriate

regulations submit evidence and clarifications in order to verify whether the exclusion criterion referred to in Section 47 or 48 applies to the candidate or tenderer

As regards Section 47 and Section 48(1)(3) the contracting authorityentity shall accept as

evidence an extract from the criminal record issued by a competent authority in the country in

which the tenderer is established As regards Section 48(1)(2 6) a certificate issued by the competent authority shall also be accepted as evidence

Where the country in which the candidate or tenderer is established does not issue such ex-

tracts or documents they may be replaced by a declaration on oath or by a solemn declaration

under the law of the country in which the representative of the candidate or tenderer is estab-

lished

23

Section 50

Requirements and references relating to the suitability of candidates and tenderers

The contracting authorityentity may set requirements relating to the candidates or tenderers

financial and economic standing technical capacity professional ability information security

security of supply and requirements concerning quality and request that the candidates and tenderers submit the related reports

In order to verify the requirements and that the requirements are satisfied the references re-

quested shall be related to the candidates or tenderers ability to perform the contract and

they shall be in proportion to the subject matter purpose and scope of the contract Require-

ments and references shall be indicated in the contract notice Candidates or tenderers failing

to satisfy the minimum requirements set by the contracting authorityentity shall be excluded from participation in the competitive bidding

The contracting authorityentity shall indicate in the contract notice any objective and non-

discriminatory criteria and rules which it shall apply in restricted procedures negotiated pro-

cedures or in the competitive dialogue procedure to admit candidates or tenderers to the com-

petitive bidding or negotiations The contracting authorityentity shall state the minimum

number of candidates and where appropriate also the maximum number of candidates

The contracting authorityentity may invite candidates or tenderers to supplement or clarify

the references and other documents

Section 51

Register data

The contracting authorityentity may request that the candidate or tenderer prove under the law of the country in which it is established that

1) it is registered in a professional or trade register

2) it carries out a trade by providing a declaration on oath or certificate and

3) it is entitled to provide a service in the country in which it is established by providing a li-cense or a certificate of membership of an organisation

Section 52

Economic and financial standing

The contracting authorityentity may request that a candidate or tenderer furnish proof of its financial and economic standing by references such as

1) a statement from a bank or credit institution or evidence of professional risk indemnity in-surance

2) a profit and loss account balance sheet annual report financial statements and group fi-

nancial statements if these must be published in the country in which the candidate or ten-

derer is established and

3) a statement of the undertakings overall turnover and turnover in the area that is the object

of the contract for a maximum of the three most recent fiscal periods if information on these turnovers is available

If for any valid reason the candidate or tenderer is unable to provide the documents request-

ed by the contracting authorityentity it may demonstrate its economic and financial standing

by any other document which the contracting authorityentity considers appropriate

24

Section 53

Technical capacity and professional ability

The contracting authorityentity may request that the candidate or tenderer furnish proof of its

technical capacity and professional ability by the following documents

1) the educational and professional qualifications of the candidate or tenderer or those of the

management of the undertaking and in particular those of the persons responsible for man-

aging the work or providing services or products that involve siting or installation functions or services

2) a list of the works carried out over a period not exceeding the past five years accompanied

by a certificate of satisfactory execution of the most important works the certificate shall indi-

cate the value date and site of the works and shall specify whether they were carried out ac-

cording to the rules of the trade and properly completed where appropriate a competent au-thority shall submit these certificates to the contracting authorityentity directly

3) a list of the principal deliveries carried out or the main services provided over a period not

exceeding the past five years with the sums dates and recipients involved where the recipi-

ent was a public body the list shall be verified by the competent authority where the recipient

was a private purchaser by the purchasers certification or failing this by a declaration of the

candidate or tenderer

4) an indication of the technical experts or bodies involved whether or not they belong directly

to the candidate or tenderer especially those responsible for quality control and in the case of

public works contracts those experts and bodies upon whom the contractor can call in order to carry out the work

5) the candidates or tenderers description of the tools equipment and actions by which it

ensures quality as well as the research and testing equipment required to implement the con-tract and the internal rules regarding industrial property and copyrights

6) a certificate for the inspection carried out by the candidate or tenderer or on its behalf by a

competent official body of the country in which the candidate or tenderer is established regard-

ing the candidatersquos or tendererrsquos production capacities technical capacity research or trial sys-

tems or quality control measures which it will implement

7) a statement of the average annual manpower of the service provider or contractor and the number of managerial staff for the last three years as a maximum

8) a statement of the tools fixtures technical equipment number of personnel know-how and

sources available to the service provider or tenderer for carrying out the contract for fulfilling

the additional needs that may arise from any crisis that the contracting authorityentity may

undergo or for the maintenance modernisation or adaptation of the products that are the ob-

ject of the contract in addition information on the geographic location of the tools fixtures

technical equipment number of personnel know-how and sources in the event that these are located outside of the European Union

9) with regard to the products to be supplied samples descriptions and photographs the au-

thenticity of which must be certified if the contracting authorityentity so requests and certifi-

cates drawn up by an official quality control institute or agencies of recognised competence

attesting to the conformity of the products to be supplied with technical specifications or standards and

10) with regard to public contracts having as their object supplies requiring a service or siting

or installation work an indication of professional ability efficiency experience and reliability

If appropriate to the object of the contract the contracting authorityentity may request that

the candidate or tenderer provide an indication of the environmental management measures to

be applied when performing a public works or service contract Should the contracting authori-

tyentity require the production of certificates drawn up by independent bodies attesting the

compliance of the tenderer with environmental management standards it shall refer to the

Community eco management and audit scheme (EMAS) or to the environmental management

standards based on relevant European or international standards certified by bodies conform-

25

ing to Community law or relevant European or international standards concerning certification

The contracting authorityentity shall accept equivalent certificates from bodies established in

other European Union member states and other evidence of equivalent environmental man-agement measures from the suppliers

If appropriate to the object of the contract the contracting authorityentity may request that

the candidate or tenderer provide an indication of the quality assurance measures Should the

contracting authorityentity require the production of certificates drawn up by independent

bodies attesting to the compliance of the tenderer with quality assurance standards the con-

tracting authorityentity shall refer to quality assurance systems based on relevant European

standards series certified by bodies conforming to the European standards series concerning

certification The contracting authorityentity shall accept equivalent certificates from bodies

established in other European Union member states and other evidence of equivalent quality assurance measures from the tenderers

If for any valid reason the candidate or tenderer is unable to provide the documents request-

ed by the contracting authorityentity it may demonstrate its economic and financial standing by any other document which the contracting authorityentity considers appropriate

Section 54

Requirements on information security set for candidates and tenderers

If classified documents are submitted drawn up or otherwise dealt with to carry out a call for

tender the contracting authorityentity may set requirements for candidates or tenderers to

meet the information security requirements laid down for authorities The contracting authori-

tyentity may request candidates or tenderers to provide commitments or information which

prove their capacity to meet the information security requirements

For candidates who have not obtained the certificate or commitment referred to in Section 1

the contracting authorityentity may grant additional time to obtain the certificate or commit-

ment In that case a deadline shall be set for the delivery of these In addition to the com-

mitments and information provided by the candidate the contracting authorityentity may render and consider any supplemental investigations it has conducted

Section 55

Legal form of the candidate and the tenderer and indication of the responsible per-sons

A candidate or tenderer which under the legislation of the country in which it is established is

entitled to provide the services that are the object of the contract may not be rejected solely

on the ground that under the legislation of the European Union member state in which the contract is awarded it would be required to be either a natural or legal person

In the case of public service and public works contracts as well as public supply contracts in-

volving siting and installation operations the contracting authorityentity may require candi-

dates and tenderers to indicate in the tender or the request to participate the names and pro-

fessional qualifications of the persons responsible for carrying out the services or the work in question

Section 56

Groups participating in the competitive bidding and reliance on the capacities of oth-er entities

Groups of suppliers may submit tenders or put themselves forward as candidates The con-

tracting authorityentity may not require these groups of candidates or tenderers to assume a

specific legal form in order to submit a tender or a request to participate However the group

may be required to do so during the term of the contract to the extent that this change is necessary for the satisfactory performance of the contract

26

A candidate or tenderer may rely on the capacities of other entities regardless of the legal na-

ture of the links it has with them to carry out the contract A group may rely on the abilities of

participants in the group or in other entities in order to perform the contract The candidate or

tenderer or a group thereof shall furnish the contracting authorityentity with proof that the

requirements relating to economic and financial standing technical capacity and professional

ability and other requirements are satisfied This proof may include contracts between compa-

nies or other binding documents demonstrating that the capacities to satisfy the requirements are accessible by the candidates or tenderers

Section 57

Selecting the tender

The contract awarded shall be either the economically most advantageous tender from the

point of view of the contracting authorityentity in accordance with the comparison criteria

linked to the object of the contract or the lowest in price When the award is made to the eco-

nomically most advantageous tender the criteria may include for example quality price

technical merit aesthetic and functional characteristics environmentally friendly characteris-

tics running costs costs associated with a long life cycle cost effectiveness after-sales ser-

vice and technical assistance delivery date delivery period and period of completion security of supply and interoperability and functional characteristics

The contracting authorityentity shall specify in the contract notice or the invitation to tender

documentation the comparison criteria and the relative weighting which it gives to each of the

criteria chosen to determine the economically most advantageous tender In the competitive

dialogue procedure the equivalent information shall be specified in the contract notice or the

project description The weighting may also be specified by indicating a reasonable range If it

is not reasonably possible to specify the relative weighting of the comparison criteria they

shall be specified in the order of importance

Section 58

Abnormally low tenders

The contracting authorityentity may reject tenders that are abnormally low in relation to the

quality and scope of the contract Before it may reject a tender the contracting authori-

tyentity shall request in writing a written report from the tenderer on the constituent ele-ments of the tender

The request referred to in subsection 1 may relate in particular to the economic and technical

solutions chosen for the manufacture of the goods supply of the service or execution of the

work exceptionally favourable conditions for the execution of the contract the originality of

the proposed solution employment protection at the place where the contract is executed and

compliance with the provisions relating to working conditions or the possibility of the tenderer

receiving state aid The contracting authorityentity shall verify the constituent elements of the tender taking into account the evidence supplied

The contracting authorityentity may reject a tender which is abnormally low in price because

the tenderer has obtained state aid illegally The tender can be rejected only after a sufficient

time limit has been fixed for the tenderer to prove that the state aid in question was granted

legally If the contracting authorityentity rejects the tender because of illegal state aid it shall report the matter to the European Commission

Section 59

Taking account of a subsidy awarded by the contracting authorityentity in the com-parison of tenders

If the tenderer is an entity belonging to the contracting authorityentitys organisation or if the

contracting authorityentity has granted or will grant the tenderer a financial subsidy which will

affect the price of the tender in the comparison of the tenders the contracting authorityentity

27

shall take into account the factors which will genuinely affect the price of the tender paid by

the contracting authorityentity such as the financial subsidy in question

Chapter 9 Subcontract agreements

Section 60

Subcontracts with related companies

The contracting authorityentity may request the tenderer to state in its tender which part of

the contract it plans to award as a subcontract to related companies and to list these compa-

nies The contracting authorityentity may also request tenderers submitting tenders as a

group as defined in Section 56 to indicate in their tender which part of the contract they plan

to award as a subcontract to their related companies and to list these companies If the rela-

tionships between the companies change during the procurement procedure the tenderer shall update the information included in its tender

A related company means a company which is under the direct or indirect control of the ten-

derer or which has direct or indirect control of the tenderer or which jointly with the tenderer

is under the control of another company on the basis of ownership financial contribution or the

regulations under which the company operates A company is considered to have control of

another company when it owns the majority of that companys unrestricted shareholder equity

controls the majority of the companys shareholders voting rights or may appoint half of the

members of the companys administrative managerial or supervisory body

The provisions of Sections 62-66 of this Act concerning subcontracting agreements are not

applicable to subcontracting agreements which the tenderer has entered into with a related

company or when the tender has been submitted by a group as defined in Section 56 to a

company belonging to the same group or a company which is a related company of a company

belonging to the group

Section 61

Selecting a subcontractor

The tenderer may select its subcontractors in all subcontracting agreements unless otherwise prescribed in Sections 62ndash66 of this Act

Section 62

Requirements concerning subcontracting agreements

The contracting authorityentity shall define the requirements for a subcontracting agreement

in the contract notice and further specify them in the invitation to tender In defining the re-

quirements for subcontracting agreements the principles of proportionality and non-discrimination must be complied with

The contracting authorityentity may require that the tenderer state in the tender which part

or parts of the contract it plans to subcontract to third parties the content of the subcontract-ing agreement and the chosen subcontractors shall also be stated

In addition to the provisions of subsection 2 the contracting authorityentity may require that

the tenderer selected as a contracting party shall

1) in accordance with the procedures laid down in Sections 64ndash66 of this Act invite bids on

part or all of the subcontracts included in the tender and stated in the notice in accordance with subsection 2 or

2) award the minimum amount of the contract value as defined by the contracting authori-

tyentity to third parties as subcontracts and invite bids on these subcontracts in accordance

with the procedures laid down in Sections 64ndash66 of this Act The contracting authorityentity

shall in that case define as percentages the minimum and maximum amount the tenderer shall

award to third parties as subcontracts and require that the tenderer state in its tender which

28

part or parts of the contract it plans to award to third parties as subcontracts in order to fulfil

the requirement of the contracting authorityentity The maximum amount defined by the con-tracting authorityentity shall not exceed 30 percent of the value of the contract or

3) invite bids on a part or parts of the subcontracts which it plans to award to third parties in

addition to the subcontracts mentioned in point 2 above In that case the contracting authori-

tyentity shall require that the tenderer specify in its tender those parts of the contract which it

plans to award as subcontracts to third parties in addition to the subcontracts mentioned in point 2 above

In addition to the provisions of subsections 2 and 3 the contracting authorityentity may re-

quire that the tenderer report any changes occurring at the subcontractor level during the im-

plementation of the contract

The contracting authorityentity shall set the maximum and minimum amount as defined in

subsection 3 point 2 having regard to the object and value of the contract and the character of the industry sector in question the competitive situation and technical capacity

The tenderer has the right to award more subcontracts to third parties than required by the contracting authorityentity in accordance with this Section

Section 63

Rejecting a subcontractor

The contracting authorityentity may specify requirements concerning the subcontractors fi-

nancial and economic situation technical capacity and professional competence information

security security of supply or quality These as well as other requirements concerning the

suitability of the subcontractor shall be stated in the contract notice These requirements shall

be equitable and non-discriminatory and conform to the requirements set in the invitation to tender concerning the suitability of the candidate or tenderer

The contracting authorityentity may decide to reject a subcontractor selected by the tenderer

during the contract procedure or the implementation of the contract if the subcontractor does

not meet the requirements set in the contract notice concerning the suitability of the subcon-

tractor or the exclusion criterion laid down in Section 47 or Section 48 applies to the subcon-

tractor The contracting authorityentity shall justify the rejection in writing to the tenderer

Section 64

Implementation of subcontracts

A tenderer selected as a contracting party shall act openly and treat any and all subcontractors

equally and in a non-discriminatory manner

A tenderer selected as a contracting party shall provide for the publication a subcontract notice

concerning those subcontracts to which the bidding obligation laid down in Section 62(3) ap-

plies and whose estimated value without value added tax exceeds the EU thresholds men-

tioned in Section 12 The notice obligation shall not apply to a subcontract which fulfills the

requirement set for a direct contract award mentioned in Sections 22ndash23 The provisions of

Sections 14ndash16 shall apply to the calculation of the estimated value of subcontracts

The tenderer selected as the contracting party shall specify in the subcontract notice the crite-

ria which the tenderer will apply in assessing the suitability of the subcontractors and in select-

ing them These criteria shall be equitable and non-discriminatory and conform to the criteria

that the contracting authorityentity applies in assessing the suitability of the tenderers The

requirements shall be related to the object of the subcontract and be proportional to the scope

of the subcontract

A tenderer selected as a contracting party may publish a subcontract notice also concerning

those subcontracts which meet the criteria for the subcontracts referred to in Sections 22ndash23

29

Section 65

Exemption from an obligation related to subcontracting

A tenderer selected as a contracting party may not be required to enter into a subcontract if it

indicates in a manner satisfactory to the contracting authorityentity that none of the subcon-

tractors that participated in the competition or none of their tenders fulfil the requirements

set in the subcontract notice and therefore the tenderer selected as a contracting party could

not fulfil the contract requirements

Section 66

Framework agreements

The provisions of Section 62 shall not apply to subcontracts awarded by the tenderer selected

as a contracting party if the framework agreement was put out to tender in accordance with

the provisions of Section 64

Subcontracts based on a framework agreement shall be awarded in accordance with the condi-

tions confirmed in the framework agreement and concluded between the original participants

to the framework agreement Conditions analogous to those of the framework agreement shall be complied with in subcontracting agreements

The framework agreement may not be used in such a way as to distort restrict or prevent

competition

The term of the framework agreement may not exceed seven years In exceptional cases the

framework agreement may be longer in duration when duly justified by the expected life cycle

of the supplies equipment and systems delivered and the technical problems that might re-

sult from the change of supplier

Section 67

The responsibility of the tenderer for carrying out the contract

The requirements set by the contracting authorityentity on the basis of this Chapter and the

notices issued by the tenderers based on them do not limit the responsibility of the tenderer

selected as a contracting party to carry out the contract PART III

National procedures

Chapter 10 Tendering procedures for contracts below the EU threshold for second-

ary service contracts referred to in Annex B and for certain other contracts

Section 68

Contract award procedures

The contract award procedures specified in this Chapter may be used for service contracts

public works contracts and the service contracts referred to in Annex A which are below the EU

threshold referred to in Section 12(1) but above the national threshold referred to in Section

13(1) and for secondary service contracts referred to in Annex B which are above the national

threshold referred to in Section 13(1)

The procedures laid down in this Chapter may also be used for defence contracts referred to in

Section 5 when the value of the defence contracts exceed the national threshold as referred to

in Section 13 provided that the criteria set in Article 346(1)(b) of TFEU are fulfilled

30

Section 69

General rules of procedure

The contracting authorityentity shall aim to take advantage of the prevailing competitive con-

ditions and award the contract primarily through competitive bidding A sufficient number of

tenders shall be requested in terms of the scope and subject matter of the contract to ensure

competition

A public notice shall be issued however the publication obligation does not apply in the case

of contracts that fulfil the criteria set in Article 346(1)(b) of TFEU

The contracting authorityentity may request a tender directly from one supplier if competitive

bidding cannot be carried out for reasons justified on the basis of national defence state secu-rity or security of supply

The contracting authorityentity may also request a tender directly from one supplier if

1) no tenders or no suitable tenders were received in the competitive bidding carried out

previously a further requirement is that the conditions of the original invitation to ten-

der are not fundamentally changed

2) for technical reasons or for reasons connected with the protection of exclusive rights the contract may be awarded only to a particular supplier

3) for reasons of urgency brought about by a crisis it is not possible to carry out competi-tive bidding

4) execution of the contract is absolutely necessary and competitive bidding cannot be

carried out for reasons of extreme urgency brought about by events unforeseeable by

and independent of the contracting authorityentity

5) the product to be acquired are manufactured purely for scientific or research purposes

and it is not a matter of establishing commercial viability of the products or to recover research and development costs

6) the object of the contract is a research and development service that has not been ex-cluded from the scope of this Act on the basis of Section 8

7) the contract is necessary in order to determine whether the final result of the research

and development service is suitable to be used as intended by the contracting authori-tyentity

8) the object of the contract consists of supplies quoted and purchased on a commodity market

9) the supplies are purchased on particularly advantageous terms from either a supplier

winding up its business activities or from the receivers of a bankruptcy or liquidators in

insolvency proceedings an arrangement with creditors or a similar procedure

10) the object of the contract is a second-hand product

11) the object of the contract is based on a supplementary contract right incorporated into

the contract

12) the object of the contract is additional deliveries by the original supplier which are in-

tended either as a partial replacement of existing supplies or installations or as the ex-

tension of existing supplies or installations and a change of supplier would result in in-

compatibility or disproportionate technical difficulties in operation and maintenance

13) the object of the contract is additional works or services not included in the project ini-

tially but which have through unforeseen circumstances become necessary for the per-

formance of the works or services as originally described

31

Section 70

Negotiations with tenderers and specifying the tender and the invitation to tender

The contracting authorityentity may discuss all aspects of the contract with the tenderers dur-

ing the negotiation provided that the negotiations do not result in changing constituent ele-

ments in the invitation to tender in a discriminating manner or in a manner which distorts

competition

The purpose of the negotiations shall be to select the best tender in accordance with Section

73(2) or to determine one or more alternative solutions for contract implementation before

sending the final invitation to tender The dialogue may take place in successive stages in or-

der to reduce the number of tenders or solutions to be discussed during the dialogue by apply-

ing the comparison criteria indicated in the invitation to tender or project description

In competitive bidding the requirement for negotiations shall be that the negotiations and the

criteria to be complied with during the negotiations have been stated in the invitation to tender

or the project description

The contracting authorityentity shall ensure equal treatment of all candidates and tenderers

during the negotiations and shall not provide information in a manner that may compromise

the equal treatment of the participants in competitive bidding

Section 71

Invitation to tender

The invitation to tender shall be submitted in writing and drawn up to be sufficiently clear in

order to enable submission of commensurate and mutually comparable tenders The invitation

to tender shall contain all information that is particularly important in terms of the contracting

procedure and submitting the tender

The invitation to tender shall include the award criterion and where the criterion for the award is that of the economically most advantageous tender the comparison criteria and the ranking thereof The invitation to tender shall indicate a reasonable time allotted for the tenderers to submit a tender taking into consideration the scope and subject matter of the contract

The contracting authorityentity may charge a reasonable fee for the invitation-to-tender doc-

uments to recover the costs arising from the exceptionally extensive scope of the documenta-

tion the materials related thereto or other similar factors

Section 72

Drawing up the invitation to tender and submitting the tender

The invitation to tender and the tenders based thereon shall be drawn up in writing They may be executed orally only in exceptional circumstances if the written procedure is justifiably not appropriate If the invitation to tender or the tenders are not drawn up in writing a record shall be kept of the negotiations held with the tenderers the record shall indicate the infor-mation impacting the course of the procedure and the position of the tenderers

Section 73

Selection of a tender and a tenderer rejecting a tender

The contracting authorityentity may exclude from the competitive bidding any supplier which

taking into consideration the scope and object of the contract and other criteria does not pos-

sess the qualifications to carry out the contract The contracting authorityentity may exclude

32

from the competitive bidding any tender submitted by a tenderer who does not possess the

qualifications to carry out the contract when taking into consideration the scope and object of

the contract and other criteria

The contracting authorityentity shall award the contract to the tenderer whose tender has the

lowest price or complies with the comparison criteria set in the invitation to tender and is eco-

nomically the most advantageous

The contracting authorityentity may reject a tender which does not fulfil the essential condi-

tions set in the invitation to tender or has an abnormally low price in terms of the subject mat-

ter and scope of the contract Before it may reject a tender the contracting authorityentity

shall request in writing details of the constituent elements of a tender that is abnormally low in

price

PART IV

General provisions on decisions concerning contract awards conclusion of contracts

procurement rectification public access to the contract documents and further provi-sions

Chapter 11

Decisions concerning the award of contracts and notification thereof

Section 74

Decision concerning the award

The contracting authorityentity shall provide in writing the decisions affecting the position of

the candidates and tenderers and the results of the tendering procedure including the grounds for the outcome of the procedure

The decision or the related documentation shall state the factors that fundamentally affected

the outcome including the grounds for rejecting the candidate tenderer or tender and the

grounds on which the accepted contracts were compared As regards a decision concerning

asking for bids for a contract based on a framework arrangement stating the facts showing

that the selection and award criteria have been applied as required under Section 27 shall

suffice If the standstill period referred to in Section 79 applies to the contract the decision or

the related documents shall also state the period of time after which the contract may be awarded

The contracting authorityentity is not required to make a decision referred to in this Section

concerning a contract for the additional supplies referred to in Section 23 or Section 69(4)(12)

and additional service or contract referred to in (13) or the temporary arrangements for a con-tract referred to in Section 95

In contracts based on framework agreements the contracting authorityentity is not required to make the decision referred to in this Section if

1) the contract is awarded in accordance with the conditions laid down in the framework

agreement without asking for bids or

2) the competitive bidding is based on a framework agreement when the value of the contract

does not exceed the EU threshold

33

Section 75

Suspending the contract award procedure

The contract award procedure can be suspended only for verifiable and justifiable reason

The provisions of Section 74 concerning contract ruling shall apply to the suspension of the

contract award procedure

Section 76

Appeal instructions and instructions for request for rectification

Instructions for appeal shall accompany the decisions made by the contracting authori-

tyentity explaining how to refer a case to the Market Court for consideration contact infor-

mation of the contracting authorityentity for the notice referred to in Section 90 and instruc-

tions for seeking rectification (petition instructions) explaining how the candidate or tenderer can have the case submitted for reconsideration through procurement rectification

With regard to the issuing and amending appeal and petition instructions the provisions of

Chapter 3 of the Administrative Judicial Procedure Act (5861996) shall apply in terms of ap-

peals and the provisions of Chapter 7 of the Administrative Procedure Act (4342003) shall

apply in terms of petition instructions

Section 77

Notification of the decision concerning the contract award

The decision of the contracting authorityentity including the grounds for the decision and the

appeal and petition instructions shall be submitted in writing to the parties concerned The de-

cision including the aforementioned documents shall be submitted using the electronic con-

tact information which the candidate or tenderer has given to the contracting authorityentity

When using the electronic contact information the candidate and tenderer shall be considered

to have received notice of the decision and the accompanying documents on the date on

which the electronic message containing the aforementioned documents is available in the re-

cipients reception equipment such that the message can be handled Such a point in time shall

mean the date on which the message was sent unless a reliable explanation concerning the

malfunction of telecommunications links or another analogous reason because of which the

electronic message reached the recipient later When electronic notification is used the con-

tracting authorityentity shall include in the message a separate note concerning the date

when the message was sent

The decision including the grounds for it and the appeal and petition instructions may also be

sent via regular mail under the Administrative Procedure Act Candidates and tenderers shall

be considered to have received notification of the decision and the accompanying documents

on the seventh day from the date on which they were sent unless the candidate or tenderer

proves that the notification occurred at a later date

Notification on the decision of the contracting authorityentity shall be issued without undue

delay at the latest 15 days from the date on which the contracting authorityentity receives a written request concerning notification on the decision that was made

34

Chapter 12

Public contract

Section 78

Concluding a public contract

Having made the decision to award a public contract the contracting authorityentity shall

conclude the contract The contract is concluded upon signing a written agreement

Section 79

Standstill period

In the case of a contract above the EU threshold referred to Section 12 above the contract can

be concluded at the earliest 21 days from the date when the candidate or tenderer received or is considered to have received the decision and instructions for appeal (standstill period)

A standstill period shall not be applied in direct contract awards

The provisions of Section 92 shall apply to the effect of an appeal on concluding a contract

Section 80

Exceptions to the compliance with the standstill period

The standstill period need not be upheld if

1) the contract concerns a procurement carried out on the basis of the framework agreement in accordance with Section 27

2) the contract is awarded to the tenderer who submitted the only acceptable tender and no

other tenderers or candidates remain in the competitive bidding whose position would be af-

fected by the selection of a co-contractor

3) the contract concerns a procurement referred to in Section 68(2)

Section 81

Notification of direct awards and conclusion of public contracts

In direct awards exceeding the EU threshold the contracting authorityentity may after hav-

ing made the award decision send a notice for publication concerning the direct award of con-

tract before concluding the contract In that case the contract can be concluded at the earli-est 14 days after the publication of the notice in the Official Journal of the European Union

Chapter 13

Procurement rectification

Section 82

Rectification of a procurement

The contracting authorityentity may remove an incorrect decision or annul an award decision

made during the contracting procedure concerning the legal status of the candidates or ten-

35

derers and make a new decision (procurement rectification) if the award decision or other deci-

sion reached during the contracting procedure is based on an error that occurred in the appli-cation of the law

Amending an award decision or other decision does not require the consent of the party con-

cerned However an award decision or other decision cannot be amended through procure-

ment rectification if the contract has been concluded

Section 83

Initiation of procurement rectification

The contracting authorityentity may take up a procurement rectification on its own initiative

or in response to a demand of the party in question The contracting authorityentity shall noti-fy the concerned parties immediately of the initiation of a procurement rectification

A subcontractor does not have the status of a concerned party referred to in subsection 1 of this section in terms of the matter concerning the contract

The concerned party shall present the demand within 14 days after receipt of the notification

of the award decision or other decision made by the contracting authorityentity during the

contracting procedure The contracting authorityentity itself may amend the award decision or

other decision no later than 60 days after the date the decision concerning the procurement rectification is made

Appealing the case to the Market Court does not prevent a procurement rectification or its pro-

cessing A procurement rectification may also apply to a decision of the contracting authori-

tyentity that has become legally binding if the case has not been submitted to the Market

Court for ruling

Section 84

Effect of the processing of procurement rectification on the proceedings in the Mar-ket Court

The initiation and processing of a procurement rectification do not affect the time limit within

which the concerned party has the right pursuant to this Act to submit an appeal against the

decision to the Market Court

If the award decision or other decision that was reached during the contract award procedure

is to be amended and has been appealed against before the Market Court the Market Court

shall be notified of the processing of the case through procurement rectification and informed

of the decision reached In processing a procurement rectification the contracting authori-

tyentity may prohibit the enforcement of the award decision or other decision or order it to be

suspended The Market Court shall be notified of a prohibition or suspension of enforcement if an appeal has been lodged against the decision in the Market Court

If the contracting authorityentity amends its award decision or other decision by means of a

procurement rectification such that as a result the appellant to the Market Court no longer has

the need for judicial relief or the need for a justified decision the Market Court may decline to

process such a case without giving a ruling on the principal claim

Section 85

The application of procurement rectification to other contracts

A procurement rectification can also be applied to amend an award decision or other decision

made by the contracting authorityentity during the contracting procedure to which this Act

36

shall not apply pursuant to Section 6(2) and Sections 7 8 or 13 A decision made on account

of such a contract rectification may not be appealed against in the Market Court or under the Administrative Judicial Procedure Act or Local Government (Act 3651995)

Chapter 14

Public access to the contract documents

Section 86

Application of the provisions concerning public access to the contract documents

The Act on the Openness of Government Activities (6211999) shall apply to public access to

the documents of the contracting authorityentity and the fees charged for the documents if

the contracting authorityentity is the authority referred to in Section 4 of the aforementioned

Act or if it is obliged to comply with that Act on the basis of a provision contained elsewhere in the Act

In terms of the right of parties other than the participants in the competitive bidding conducted

by the contracting authorityentity referred to in subsection 1 to have access to the docu-

ments drawn up and received for processing of the tender and the confidentiality obligation of

those employed by the contracting authorityentity the provisions of the Act on the Openness

of Government Activities shall apply to the right of concerned parties to have access to the

document to how public access to the document is determined and to the processing and resolving of the matter concerning access to information

The decision of the contracting authorityentity which has resolved the matter concerning ac-

cess to information can be appealed in accordance with the provisions of Section 33 of the Act

on the Openness of Government Activities The Supreme Administrative Court in whose judicial

district the contracting authorityentity is located is the competent Supreme Administrative

Court for considering the appeal submitted on the basis of a decision made by a party other

than the contracting authorityentity acting as an authority

Chapter 15

Appealing and the implications thereof

Section 87

Parties entitled to appeal

A concerned party may appeal the matter to the Market Court by issuing a complaint A sub-

contractor does not have the position of an interested party referred to in subsection 1 of this Section in terms of the matter concerning the contract

In matters concerning control procedures of the European Union the Ministry of Economic Af-

fairs and Employment may also refer the matter to the Market Court for consideration

Section 88

Object of the appeal

An appeal may be lodged before the Market Court against an award decision of the contracting

authorityentity referred to in this Act or other decision reached by the contracting authori-

tyentity during the contracting procedure which affects the status of the candidate or the ten-derer

37

An appeal may not be lodged before the Market Court against an award decision or other deci-

sion of the contracting authorityentity which concerns only the preparation of the contracting

procedure An appeal may not be lodged against a decision or other measure taken by the

supplier selected as a contracting party concerning a subcontracting agreement or an award

decision or determination made by the contracting authorityentity during the implementation of the contract

A contract based on a framework agreement referred to in Section 27 above and a contract

referred to in Section 68(2) may not be appealed unless a processing authorisation is issued by the Market Court The authorisation shall be issued if

1) the processing of the case is important in terms of applying the Act in other similar matters

or

2) there is a cogent reason for it related to the procedures of the contracting authorityentity

Section 89

Time period for appeal

Unless otherwise prescribed in this Section an appeal must be lodged in writing within 14 days

from the date when the candidate or tenderer received the notice concerning the contract with the instructions for appeal

If the contracting authorityentity has concluded a public contract after the contract decision

was issued on the basis of Section 80 point 1 without complying with the standstill period

the appeal shall be lodged within 30 days from the date when the tenderer has received notice

of the decision with the instructions for appeal

An appeal before the Market Court shall be lodged within six months of the date of the contract

decision provided that the candidate or tenderer has received notice of the contract decision

and the contract decision or appeal instructions were materially deficient or the appeal instruc-tions have been missing altogether

If the contracting authorityentity has with regard to a contract above the EU threshold re-

ferred to in Section 12 above delivered a notice regarding a direct award of contract for publi-

cation in the Official journal of the European Union the complaint must be lodged within 14 days from the publication of the notice

If the notice referred to in subsection 4 has not been published the appeal concerning a direct award of contract shall be lodged

1) within 30 days of the date of publication of a contract-award notice has been published in

the Official Journal of the European Union or

2) within six months from the conclusion of the contract at the latest

Section 90

Notification of appeal to the contracting authorityentity and the list of procurement

cases

The appellant in a contract-related matter must notify the contracting authorityentity in writ-ing of referring the case to the Market Court for consideration

The notification must be delivered to the contracting authorityentity at the latest when the

complaint concerning the contract is delivered to the Market Court The notification shall be delivered to the address provided by the contracting authorityentity

38

The Market Court shall maintain and publish a list which is as comprehensive and up-to-date

as possible of contract-related matters pending at the Market Court

Section 91

The contracting authorityentity as the opponent and compensation of legal costs

In the proceedings regarding contract-related matters the contracting authorityentity shall be considered the opponent of the party or agency lodging the appeal

The provisions of Section 74 subsections 1 and 2 of the Administrative Judicial Procedure Act shall apply to the compensation of legal costs regarding contract-related matters

The provisions of Section 74 subsections 1 and 2 of the administrative Judicial Procedure Act

concerning public authorities or other public parties shall apply to the decision concerning the

liability to provide compensation for the legal costs of the opponent If one contracting authori-

tyentity has been responsible for the contracting procedure on behalf of the other contracting

authorities the obligation regarding compensation of legal costs may be placed on the con-

tracting authorityentity which acted on behalf of the other contracting authorities

Section 92

The effect of the appeal on concluding the contract

In case of a contract where the standstill period or the time limit referred to in section 81 must

be observed the contracting authorityentity may not conclude the contract if the matter has

been brought up for consideration by the Market Court

If the Market Court decides a case concerning enforcement or decides on the principal claim

before the standstill period or the time limit referred to in Section 81 has expired the contract-

ing authorityentity shall observe the standstill period or the time limit referred to in Section

81 until the end of the period notwithstanding the ruling of the Market Court

Section 93

Interim decisions of the Market Court

While the appeal is under consideration the Market Court may prohibit suspend or allow the

implementation of the decision concerning the contract award or order the contracting proce-

dure to be suspended otherwise as an interim measure for the duration of the proceedings in the Market Court

When deciding on the measure referred to in subsection 1 the Market Court shall take into

consideration that the harm caused by the measure to the opponent the rights of third par-

ties the security of the state or the public interest may not outweigh its benefits

However the decision prescribed in subsection 1 of this Section cannot be carried out in the case of a contract referred to in Section 68(2) of this Act

A legally trained member of the Market Court may alone issue a ruling as an interim measure

Section 94

Interim commitment of the contracting authorityentity

While the appeal is under consideration the contracting authorityentity may provide a written

undertaking to the Market Court stating that it will not enforce the decision concerning the contract for as long as the matter is pending in the Market Court

39

If the contracting authorityentity provides the Market Court with the undertaking referred to

in subsection 1 the Market Court will not issue without a specific reason a decision on the

obligation to interim prohibition on implementing the decision to award the contract

Section 95

Temporary organisation of a contract

If an appeal has been lodged against a contract before the Market Court the contracting au-

thorityentity may temporarily organise the contract by ordering it from a supplier who partici-

pated in the contracting procedure or from a previous supplier if the nature of the contract is

such that executing the contract cannot be postponed for the duration of the Market Court pro-ceedings

Temporary contract arrangements must not hinder the execution of the following items by means of a decision of the Market Court

1) the decision of the contracting authorityentity to cancel the contract in full or in part

2) prohibit the contracting authorityentity from applying any erroneous item included in the contract document or otherwise complying with an incorrect procedure or

3) require the contracting authorityentity to rectify its incorrect procedure

Section 96

Sanctions imposed by the Market Court

If during the contract procedure actions have been taken which are against this Act or the provisions based thereon or against European Union legislation the Market Court may

1) cancel the decision of the contracting authorityentity in full or in part

2) prohibit the contracting authorityentity from applying any erroneous item included in the contract document or otherwise complying with an incorrect procedure

3) require the contracting authorityentity to correct its erroneous procedure

4) order the contracting authorityentity to pay a compensatory fee to the party which would

have had a genuine chance to win the bidding competition had the procedure been correct

5) impose an ineffectiveness sanction on the contracting authorityentity

6) order the contracting authorityentity to pay an infringement fine to the state

7) reduce the contract term to end after a period of time specified by the Market Court has

passed

The provisions of Sections 97ndash100 shall apply to determining the sanctions mentioned in sub-

section 1 points 4ndash7 above When determining these sanctions the Market Court may consid-

er the contract to have been concluded on the basis of specific circumstances provided that

the contracting authorityentity has especially commenced the implementation of the contract

The ineffectiveness sanctions infringement fine and reduction of contract terms may only be

issued in contracts exceeding the EU thresholds referred to in Section 12 However an ineffec-tiveness sanction cannot be imposed in a service contract in accordance with Annex B

Only a compensatory fee can be imposed in a contract referred to in Section 68(2) of this Act

40

Section 97

Compensation

Provision for compensation may be made if the harm caused to the contracting authori-

tyentity rights of third parties state security and the public interest by the measure defined

in Section 96(1)(1ndash3) is considered to outweigh the benefits or if the petition has been initiat-

ed following the conclusion of the contract With respect to setting the amount of the compen-

satory fee account shall be taken of the nature of the infringement or omission by the con-

tracting authorityentity the value of the contract in question and the costs and damages in-

curred by the petitioner The Market Court may however decide not to prove for compensa-

tion if the contracting authorityentity has refrained from implementing the contract during the proceedings in the Market Court

Without a specific reason the amount of compensation shall not exceed 10 percent of the val-

ue of the contract

Section 98

Ineffectiveness

The Market Court may declare a contract ineffective if

1) the contracting authorityentity has made a direct award of contract without the basis re-ferred to in this Act and the procedures referred to in Section 81

2) the contracting authorityentity has concluded the contract although there is an obligation in the contract to observe a standstill period

3) the contracting authorityentity has concluded the contract contrary to Section 92 although

the procurement case has been submitted to the Market Court for a decision

In addition a requirement in the situation referred to in subsection 1 points 2 and 3 above is

that the contracting authorityentity has made another infringement contrary to this Act which has affected the chances of the appellant to win the contract

If the contracting authorityentity has concluded the contract in a competition based on the

framework agreement on the basis of Section 80 without observing the standstill period and if

a breach has been committed in the competition in respect of Section 27(2 or 3) such that this

has affected the chances of the appellant to win the contract the Market Court may declare the contract ineffective

The Market Court shall decide to which contractual obligations ineffectiveness shall apply Inef-

fectiveness shall apply only to unfulfilled contractual obligations

Section 99

Non-imposition of ineffectiveness

In the situations referred to in Section 98 above the Market Court may decide not to impose

ineffectiveness for compelling reasons related to the public interest or state security Economic

interests which are directly related to the contract may be deemed compelling only if ineffec-tiveness of the contract would exceptionally have inequitable consequences

The Market Court may not impose ineffectiveness if it would result in serious endangerment of

the implementation of a defence and security project essentially important with respect to

state security

Section 100

41

Infringement fines and reduction of the contract term

The Market Court may order a contracting authorityentity to pay the state an infringement

fine if

1) the Market Court has declared the contract ineffective

2) the contracting authorityentity has concluded the contract although there is an obligation in the contract to observe a standstill period

3) the contracting authorityentity has concluded the contract contrary to Section 92 although the procurement case has been submitted to the Market Court for a decision or

4) the Market Court has decided not to declare the contract ineffective for compelling reasons related to the public interest or state security in accordance with Section 99

In the situation referred to in subsection 1 point 4 above the Market Court may in addition to

or instead of imposing a sanction reduce the contract term so that it ends after a period of time specified by the Court

The Market Court may order a contracting authorityentity to pay the state an infringement

fine or reduce the contract term so that it ends after a period of time specified by the Court

this applies to service contracts referred to in Annex B of this Act the value of which exceeds

the EU threshold as defined in Section 12 if the contracting authorityentity

1) has made a direct award of contract without the basis referred to in this Act and the proce-dures referred to in Section 81 not having been complied with in the direct award

2) has concluded the contract although there is an obligation in the contract to observe the standstill period

3) has concluded the contract contrary to Section 92 although the procurement case has been submitted to the Market Court for a decision or

4) has concluded the contract in a competition based on a framework agreement on the basis

of Section 80 without observing the standstill period and if a breach has been committed in the

competition in respect of Section 27(2 or 3) such that this has affected the chances of the ap-pellant to win the contract

In addition a requirement in the situation referred to in subsection 3 points 2 and 3 above is

that the contracting authorityentity has made another infringement contrary to this Act which

has affected the chances of the appellant to win the contract

With respect to issuing a sanction the Market Court shall take into account the nature of the

mistake or omission by the contracting authorityentity and the value of the contract in ques-

tion The sanction shall not exceed 10 percent of the value of the contract

Section 101

Allocation of sanctions and cumulative effect

If one contracting authorityentity has been responsible for the contracting procedure on be-

half of the other contracting authorities the obligation to compensate for legal costs can be

placed on the contracting authorityentity that acted on behalf of the other contracting authori-

ties

With respect to the sanctions referred to in this Act the Market Court shall take into considera-

tion that the cumulative effect may not become unreasonable for the contracting authori-

tyentity or its contracting party

42

Section 102

Conditional fine

The Market Court may impose a conditional fine in order to underline the importance of com-

plying with the prohibitions or obligations referred to in this Act The provisions of the Act on

Conditional Fines (11131990) shall apply to the imposing of and sentencing to the payment of

conditional fines

If one contracting authorityentity has been responsible for the contracting procedure on be-

half of the other contracting authorities the obligation to compensate for costs can be placed

on the contracting authorityentity that acted on behalf of the other contracting authorities

Section 103

Notification of the Market Courts ruling

The ruling of the Market Court along with the instructions for appeal shall be verifiably notified under the provisions of the Administrative Judicial Procedure Act

With the consent of the appellant and the contracting authorityentity the Market Courts deci-

sion together with the instructions for appeal may be publicised using the electronic contact

information the aforementioned parties have provided to the Market Court

When electronic contact information is used the appellant and the contracting authorityentity

shall be deemed to have been notified of the decision and instructions for appeal on the date

on which the message concerning the matter is available in the recipientsrsquo reception equipment

so that the message can be handled The provisions of Section 77(1) shall apply to electronic

notification

Section 104

Prohibition to appeal

A case that is within the jurisdiction of the Market Court cannot be appealed against under the

provisions of the Local Government Act or the Administrative Judicial Procedure Act

A decision or ruling concerning a contract which has been excluded from the scope of applica-

tion of this Act on the basis of Section 6(2) and Sections 78 or 13 may not be appealed under

the Administrative Judicial Procedure Act or the Local Government Act The subcontractor may

not under the Administrative Judicial Procedure Act or the Local Government Act appeal the

decision or action taken by the contracting authorityentity concerning the subcontract

Section 105

Appeals against the decisions of the Market Court

Appeals against a ruling of the Market Court can be lodged in the Supreme Administrative Court in accordance with the Administrative Judicial Procedure Act

As referred to in Section 93(1) an appeal cannot be lodged against the ruling by the Market

Court in the Supreme Administrative Court A ruling by the Market Court does not prevent the

case from being reconsidered by the Market Court if the grounds for the previous ruling have

changed

If the Market Court has ruled that it will not grant the processing authorisation referred to in

Section 88(3) then an appeal against this ruling can only be lodged if the Supreme Adminis-

trative Court grants a leave to appeal

43

Section 106

Application of the Administrative Judicial Procedure Act

The Administrative Judicial Procedure Act shall apply to appeals unless otherwise provided by this Act

Section 107

Implementation of rulings

A ruling of the Market Court has to be observed notwithstanding any appeal unless the Su-

preme Administrative Court orders otherwise The ruling of the Market Court issuing the sanc-

tion referred to in Section 96(1)(4ndash7) may only be implemented on the basis of a final ruling

The implementation of a ruling concerning a sanction shall be supervised by the Legal Register

Centre The Legal Register Centre must be informed of any ruling by the Market Court and

Supreme Administrative Court to issue a sanction

Section 108

Compensation for damages

Those who cause damage to a candidate tenderer or supplier shall be liable to pay compensa-

tion for the damage they have caused while acting in breach of this Act or any regulations based thereon or the European Union law

However when the claim for damages refers to costs incurred as a result of the tendering pro-

cedure the candidate or tenderer is entitled to compensation if it can provide proof of the in-

correct procedure as defined in subsection 1 and that had the procedure been correct it would have had a genuine chance to win the contract

In respect of the cases defined in subsection 1 and 2 a Court of first instance shall be the

competent court in accordance with Chapter 10 of the Code of Judicial Procedure

Chapter 16

Further provisions

Section 109

Disclosure of information

Notwithstanding the provisions concerning confidentiality provided for in the Act on the Open-

ness of Government Activities or in any other act the contracting authorityentity shall supply

statistics and other information concerning the different stages of the contract and performed

contracts to the Finnish authorities and European Union bodies to monitor contracts and ex-

change information on the scale and to the time limit required by European Union law Pursu-

ant to this Act the Ministry of Economic Affairs and Employment has the right to forward in-

formation it has received to the European Union authorities notwithstanding the regulations on confidentiality

The contracting authorityentity shall draw up a written report on each contract and framework

agreement which includes essential information on the contract contract procedure and the

candidates and tenderers who participated as well as on the decisions made in connection with

44

the contract The report and its main content shall be forwarded on request to the European

Commission A separate report is not required if corresponding information can be found in the

contract decision or other documents

To document the course of the realised contract procedure the contracting authorityentity

shall implement necessary measures in an electronic format

More specific rules are laid down in a Government decree on the obligation to provide statistics

and the responsibility of the contracting authorityentity to draw up reports on contract proce-

dures and contract decisions as referred to in subsection 1 which are to be forwarded to the

European Union bodies

Section 110

Entry into force and transitional provisions

This Act enters into force on 1 January 2012

If a contract procedure is started before the entry into force of this Act the provisions that

were in force at the time when this Act entered into force shall be applied The contract proce-

dure shall be deemed to have commenced when the contract notice was published A contract

which does not require the publication of the contract notice shall be deemed to have com-

menced when the invitation to tender or a meeting is sent or negotiations with suppliers begin

Measures necessary for the implementation of this Act may be undertaken before the Actrsquos

entry into force

45

ANNEX A

Primary services

Group No

Matter CPV Reference No

1 Maintenance and repair services 50000000-5 50100000-6-50884000-4 (except 50310000-1-50324200-4 and 50116510-9 50190000-3 50229000-6 50243000-0) and 51000000-9-51900000-1

2 Services related to international military assistance

75211300-1

3 Defence services military defence services and civil defence services

75220000-4 75221000-1 75222000-8

4 Investigation and security services 79700000-1-79720000-7

5 Land transport services 60000000-8 60100000-9-60183000-4 (except 60160000-7 60161000-4) and 64120000-3-64121200-2

6 Air transport services for passengers and freight except transport of mail

60400000-2 60410000-5-60424120-3 (except 60411000-2 60421000-5) 60440000-4-60445000-9 and 60500000-3

7 Transport of mail by land and by air 60160000-7 60161000-4 60411000-2 60421000-5

8 Railway transport services 60200000-0-60220000-6

9 Sea transport services 60600000-4-60653000-0 and 63727000-1-63727200-3

10 Support and auxiliary transport services 63100000-0-63111000-0 63120000-6-63121100-4 63122000-0 63512000-1 and 63520000-0-6370000-6

11 Telecommunications services 64200000-8-64228200-2 72318000-7 and 72700000-7-72720000-3

12 Financial services insurance services 66500000-5-66720000-3

13 Data-processing and related services 50310000-1-50324200-4 72000000-5-72920000-5 (except 72318000-7 and 72700000-7-72720000-3) 79342410-4 9342410-4

14 Research and development services(sup1) and evaluation tests

73000000-2-73436000-7

15 Accounting auditing and bookkeeping services

79210000-9-79212500-8

16 Management consulting(sup2) and related services

73200000-4-73220000-0 79400000-8-79421200-3 and 79342000-3 79342100-4 79342300-6 79342320-2 79342321-9 79910000-6 79991000-7 98362000-8

17 Architectural services engineering services and integrated engineering services urban planning and landscape architectural services related scientific and technical consulting services technical testing and analysis services

71000000-8-71900000-7(except 71550000-8) and 79994000-8

18 Building cleaning services and building and property management services

70300000-4-70340000-0 and 90900000-6-90924000-3

19 Sewage and refuse disposal services 90400000-1 to 90743200-9 (except 90712200-3)

46

sanitation and similar services 90910000-9-90920000-2 and 50190000-3 50229000-6 50243000-0

20 Training and simulation services in the fields of defence and security

80330000-6 80600000-0 80610000-3 80620000-6 80630000-9 80640000-2 80650000-5 80660000-8

(sup1) Except the research and development services referred to in Section 13(2)(5) (sup2) Except arbitration and conciliation services ANNEX B Secondary services

Group No

Matter CPV Reference No

21 Hotel and restaurant services 55100000-1-55524000-9 and 98340000-8-98341100-6

22 Support and auxiliary transport services 63000000-9-63734000-3 (except 63711200-8 63712700-0 63712710-3) 6372700-1-63727200-3 and 98361000-1

23 Legal services 79100000-5-79140000-7

24 Employment and personnel recruitment services(sup1)

79600000-0-79635000-4 (except 79611000-0 79632000-3 79633000-0) and 98500000-8-98514000-9

25 Health and social services 79611000-085000000-9 and -85323000-9 (except 85321000-5 and 85322000-2)

26 Other services

(sup1) Except employment contracts

47

ANNEX C NACEsup1ordm

Main category F CONSTRUCTION CPV code

2-digit level

3-digit level

4-digit level

Description Comments

45 Construction This two-digit level includes the following construction of new buildings and works reconstruction and common repairs

45000000

451 Site preparation

45100000

4511 Demolition and wreck-ing of buildings earth moving

This four-digit level includes the following - demolition of buildings and other structures - clearing of building sites and earth moving site excavation landfill and levelling trench dig-ging quarrying blasting etc - site preparation for mining

- overburden removal and other development and prepa-ration of mines and mining sites

This four-digit level also includes - building site underdrainage - drainage of agricultural or forestry land

45110000

4512 Test drilling This four-digit level includes the following - test drilling test boring and sampling for construction geophysical geological or similar purposes This four-digit level excludes the following - drilling of oil or gas wells comp 1120 - water well drilling 4525

45120000

sup1deg Council regulation (EEC) No 303790 (Official Journal of the European Union 293 24 October 1990 p 1) on the statistical classification of economic activities in the European Community issued on 9 October 1990 regulation as amended by Commission Regulation (EEC) No 76193 (Official Journal of the European Union L 83 3 April 1993 p 1) If there are differences of opinion between CPV and NACE NACE nomenclature shall apply

48

- shaft sinking comp 4525 - oil and gas field exploration geophysical geological and seismic surveying comp 7420

452 Building complete constructions or parts thereof

45200000

4521 Building work This four-digit level includes the following - Construction of all types of buildings - civil engineering and hydraulic engineering works - building of bridges including those for elevated highways metro tunnels - construction of long-distance pipelines communication cables and long-distance networks for power lines - construction of long-distance pipelines telecommunication ca-bles and municipal network power lines related installation work - on-site assembly and erection of pre-fabricated constructions This four-digit level excludes the following - services related to oil and gas extraction comp 1120 - erection of complete prefabricat-ed constructions from self-manufactured parts not of con-crete comp 20 26 28 - construction work other than buildings for stadiums swimming pools gymnasiums tennis courts golf courses and other sports installations comp 4523 building installation comp 453 - building completion comp 454 - architectural and engineering services comp 7420 - project management for construction comp 7420

45210000 Except 45213316 45220000 45231000 45232000

4522 Erection and covering of roofs

This four-digit level includes the following - erection of roofs - roof covering - waterproofing

45261000

49

4523 Construction of highways streets airports and sports equipment

This four-digit level includes the following - construction of highways streets other vehicular and pedestrian ways - construction of railways - construction of airfield runways - construction work other than build-ings for stadiums swimming pools gymnasiums tennis courts golf courses and other sports installations - painting of markings on road surfaces and car parks This four-digit level excludes the following - preliminary earth moving comp 4511

45212212 and DA03 45230000 except 45231000 45232000 45234115

4524 Construction of water projects

This four-digit level includes the following building works - construction of waterways harbour and river works marinas locks etc - construction of dams and breakwaters - dredging - subsurface work

45240000

4525 Other construction work

This four-digit level includes the following - construction activities specialising in one aspect common to different kinds of structures requiring specialised skill or equipment - construction of foundations including pile driving - water well drilling and construction shaft sinking - erection of non-self-manufactured steel frame elements - steel bending - bricklaying and stone setting - erecting and dismantling of scaffolds and work platforms including rental of scaffolds and work platforms - erection of chimneys and industrial ovens This four-digit level excludes the following - rental of scaffolds without erecting and dismantling comp 7132

45250000 45262000

453 Building installation 45300000

4531 Installation of electri-cal wiring and fittings

This four-digit level includes the installation in buildings or other

45213316 45310000

50

construction projects of - electrical wiring and fittings - telecommunications systems - electrical heating systems - residential antennas - fire alarms - burglar alarm systems - lifts and escalators - lightning conductors etc

Except 45316000

4532 Insulation work This four-digit level includes the following - installation in buildings or other construction projects of thermal sound or vibration insulation This four-digit level excludes the following - waterproofing comp 4522

45320000

4533 Plumbing This four-digit level includes the installation in buildings or other construction projects of the following - plumbing and sanitary equipment and fittings - gas fittings - heating ventilation refrigeration or air-conditioning equipment and ducts - sprinkler systems This four-digit level excludes the following - installation of electrical heating systems comp 4531

45330000

4534 Other installation work

This four-digit level includes the fol-lowing - installation or other construction of illumination and signalling systems for roads railways airports and harbours - installation in buildings or other construction projects of fittings and fixtures

45234115 45316000 45340000

454 Building completion 45400000

4541 Plastering This four-digit level includes the following - application in building or other construction projects of interior and exterior plaster or stucco and other similar lathing materials

45410000

4542 Joinery installation This four-digit level includes the following - installation of non-self-manufactured doors windows door

45420000

51

and window frames fitted kitchens staircases and shop fittings made of wood or other materials - completion of interiors such as ceilings wooden wall coverings wall paneling installation of movable partitions etc This four-digit level excludes the following - laying of parquet and other wooden floor coverings comp 4543

52

4543 Floor covering and wall upholstery

This four-digit level includes the following - covering or tiling of buildings or other structures using - ceramic concrete or stone wall or floor tiles or stones - parquet or other wooden floor covering - wall-to-wall carpeting or linoleum also rubber or plastic floor covering - wall or floor covering made of mosaic marble granite or slate - wallpaper

45430000

4544 Painting and glazing This four-digit level includes the following - interior and exterior painting of buildings - exterior painting of other structures - installation of mirrors glass etc This four-digit level excludes the following - installation of windows comp 4542

45440000

4545 Other building completion

This four-digit level includes the following - construction of private swimming pools - cleaning the exterior surfaces of buildings using steam sandblasting or other similar method - other building completion work not classified elsewhere This four-digit level excludes the following - cleaning of buildings and other structures comp 7470

45212212 and DA03 45450000

455 Rental of construction or dismantling equip-ment with operators

45500000

4550 Rental of construction or dismantling equip-ment with operators

This four-digit level excludes the following - rental of construction or dismantling machines and equipment without operators comp 7132

45500000

18

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

3) stakeholders such as public authorities consumers manufacturers representatives of re-

tail trade and environmental organisations can participate in drawing up the label and

4) the label is accessible to all interested parties

The contracting authorityentity may indicate that the products or services bearing a particular

eco-label are considered to comply with the requirements for environmental characteristics

However the contracting authorityentity must accept another appropriate means of proof

submitted by the tenderer such as a technical dossier of the manufacturer or a technical re-

port drawn by a recognised body

Section 39

Alternative tenders

Where the criterion for the award is that of the financially most advantageous tender the con-

tracting authorityentity may accept alternative tenders provided that the contract notice indi-cates that presentation of alternative tenders is permitted

The alternative tender must satisfy the minimum requirements set in the invitation to tender

and the requirements for presenting alternatives The alternative tender can be accepted if it

fulfills the aforementioned requirements set out in the invitation to tender

If the contracting authorityentity has indicated that it shall accept the submission of alterna-

tive tenders it may not reject the alternative on the sole ground that it would lead to a service contract instead of a supply contract or a supply contract instead of a service contract

Section 40

Special conditions relating to public contracts

The contracting authorityentity may lay down special conditions relating to the performance of

a contract which may concern in particular information security security of supply subcon-

tracting or environmental and social aspects compliance with the provisions of the Interna-

tional Labour Organisation (ILO) working conditions and the terms of employment provided

that the conditions are non-discriminatory and compatible with Community law and that they are indicated in the contract notice or invitation to tender

Section 41

Requirements concerning information security

If the object of the contract requires produces or otherwise deals with documents containing

classified information the contracting authorityentity can lay down to tenderers the measures

or requirements necessary to protect such information The contracting authorityentity may

require from the tenderer a commitment and information which show their ability to fulfil in-

formation security requirements Information security related requirements and commitments

and information to be provided shall be indicated in the contract notice or invitation to tender

The contracting authorityentity may as required carry out and take into consideration any

supplemental investigations it has conducted

Section 42

Requirements concerning security of supply

The contracting authorityentity shall define its requirements concerning security of supply in

the contract notice or invitation to tender

The contracting authorityentity may require that the tender shall contain inter alia the fol-

lowing

19

1) certification or documentation demonstrating to the contract entitys satisfaction that the

tenderer will be capable of complying with the requirements concerning the export transfer

and transit of the products associated with the contract including any documentation applica-

ble thereto and received from one or more states

2) a notice from the tenderer concerning any restrictions on the assignment transfer or use of

the products or services or the results thereof arising from export control or information secu-

rity arrangements

3) certification or documentation demonstrating that the organisation and location of the ten-

derers supply chain will be capable of complying with the requirements concerning security of

supply stated in the contract notice or invitation to tender and a commitment to ensure that

any changes in the supply chain during the execution of the contract will not adversely affect

compliance with these requirements

4) a commitment from the tenderer to establish or maintain ndash in accordance with conditions to

be separately agreed ndash the capacity necessary to meet additional requirements as required by

the contracting authorityentity as a result of a crisis situation

5) any supplementary documentation received from the tenderers national authorities regard-

ing the fulfilment of the requirement under point 4

6) a commitment from the tenderer to carry out the maintenance modernisation or adaptation

of the products that are the object of the contract

7) a commitment from the tenderer to inform the contracting authorityentity in due time of

any changes in its organisation supply chain or strategy that may affect its obligations to the

contracting authorityentity

8) a commitment from the tenderer to deliver to the contracting authorityentity in accord-

ance with the agreed conditions all necessary special equipment needed for the production of

spare parts components assemblies and special testing equipment including technical draw-

ings licenses and instructions for use in the event that the tenderer is no longer able to pro-

vide these products

The tenderer may not be required to obtain a commitment from a European Union member

state that would restrict the right of that member state to apply ndash in accordance with relevant

international or European Union laws ndash the licensing criteria for its national export transfer or

transit of goods under the conditions prevailing at the time of such licensing decision

Section 43

Obligations relating to taxation environmental protection employment protection and provisions on working conditions

The contracting authorityentity may specify in the invitation to tender those authorities from

which the tenderer may obtain information on the obligations relating to taxation environmen-

tal protection employment protection working conditions or the provisions on working condi-

tions The contracting authorityentity shall request the tenderers to state that they have tak-en the aforementioned obligations into consideration when drawing up their tender

The provisions of subsection 1 do not affect the obligations to examine the tenders referred to in Section 58 that are exceptionally low in price

Section 44

Demonstration of compliance with tender requirements

The tenderer shall in its tender demonstrate that the product service or works contract it is

applying for meets the requirements set in the invitation to tender Tenders which do not meet

20

the requirements set in the tendering procedure or the invitation to tender shall be excluded

from the competitive bidding

If the contracting authorityentity has drawn up the technical specifications in accordance with

Section 37(2)(1) and the tenderer in its tender indicates ndash in a way which is satisfactory to

the contracting authorityentity ndash that the product service or work it offers meets the re-

quirements set by the contracting authorityentity the contracting authorityentity may not

reject the tender on grounds that the product service or work that complies with the tender

does not meet the technical specifications referred to by the contracting authorityentity As

proof the tenderer may use for example the manufacturers technical documentation or a

technical report issued by a recognised body located in Finland or in another European Union member state

If the contracting authorityentity has drawn up the technical specifications on the basis of the

requirements concerning performance capacity or functional characteristics it may not reject

the tender on grounds of the tender not meeting the requirements set provided that the prod-

uct service or work being offered complies with a nationally enforced European standard Eu-

ropean technical approval official technical definition international standard or technical refer-

ence and these technical specifications apply to the requirements set for the performance ca-

pacity or functional characteristics stated in the invitation to tender The tenderer must indi-

cate in its tender in a way satisfactory to the contracting authorityentity that the product

service or work that conforms to the standard fulfills the criteria set by the contracting authori-

tyentity for performance capacity and functional characteristics As proof the tenderer may

use for example the manufacturers technical documentation or a technical report issued by a recognised body located in Finland or in another European Union member state

Section 45

Communication

Notifications and exchanges of information relating to a public contract shall be submitted ei-

ther by mail telefax or by electronic means according to the choice of the contracting authori-

tyentity The means of communication chosen must be in common use and not restrict the

tenderers access to the tendering procedure

The electronic tools used for communicating information as well as their technical characteris-

tics must be non-discriminatory generally available and compatible with information and

communication technology products in general use The contracting authorityentity may re-

quire that electronic signatures in tenders and requests to participate meet the requirements

laid down in the Act on Strong Electronic Identification and Electronic Signatures (6172009)

Communication and the exchange and storage of information shall be carried out in such a way

as to ensure that the integrity of data and the confidentiality of the requests to participate and

tenders are preserved The contracting authorityentity shall ensure that the content of the

tenders and requests to participate is not revealed before the time-limit set for submitting

them The contracting authorityentity shall inform in the contract notice of possible require-

ments concerning information exchange

More specific provisions concerning the methods of communication and technical and other

requirements for electronic communication are laid down in a Government decree

Chapter 8

Selection of candidates and tenderers and selection of tenders

Section 46

Assessment of the suitability of candidates and tenderers

Exclusion from competitive bidding of candidates and tenderers assessment of the suitability

of candidates and tenderers and in line with Sections 47 to 56 the selection of tenderers shall

be carried out before the tenders are compared However a candidate or tenderer may be

excluded from participation in the competitive bidding in accordance with Section 47 or 48

21

even later during the competition when the contracting authorityentity has been made aware

of the criterion for exclusion

Section 47

Exclusion from the competition of candidates and tenderers convicted of certain of-fences

The contracting authorityentity shall make a decision to exclude a candidate or tenderer from

the competitive bidding if it has become aware that the candidate or tenderer or director or

any person having powers of representation decision or control has been the subject of a con-

viction by judgment that has obtained the force of res judicata and is specified in a criminal record for one or more of the reasons listed below

1) participation in the activities of a criminal organisation as defined in Chapter 17 Section 1 a of the Criminal Code of Finland (391889)

2) bribery as defined in Chapter 16 Section 13 aggravated bribery as defined in Chapter 16

Section 14 or bribery in business as defined in Chapter 30 Section 7 of the Criminal Code of

Finland

3) tax fraud as defined in Chapter 29 Section 1 or aggravated tax fraud as defined in Chapter

29 Section 2 subsidy fraud as defined in Chapter 29 Section 5 aggravated subsidy fraud as

defined in Chapter 29 Section 6 subsidy misuse as defined in Chapter 29 Section 7 of the Criminal Code of Finland

4) an offence committed with terrorist intent as defined in Chapter 34 a Section 1 of the Crim-

inal Code of Finland preparations for an offence to be committed with terrorist intent as de-

fined in Section 2 leading a terrorist group as defined in Section 3 advancing the activities of

a terrorist group as defined in Section 4 providing training for the purpose of committing a

terrorist offence as defined in Section 4 a recruitment for the purpose of committing a terror-

ist offence as defined in Section 4 b and instigation aiding and abetting or attempt to com-mit the offences mentioned above

5) money laundering as defined in Chapter 32 Section 6 aggravated money laundering as

defined in Section 7 or financing terrorism as defined in Chapter 34 a Section 5 of the Crimi-

nal Code of Finland or

6) work discrimination through undue influence as defined in Chapter 47 Section 3 a of the

Criminal Code

A candidate or tenderer convicted to pay a corporate fine referred to in Chapter 9 of the Crimi-nal Code shall also be excluded from the competitive bidding

The contracting authorityentity shall exclude a candidate or tenderer from the competitive

bidding if the candidate or tenderer has been the subject of a conviction by judgment that has

the force of res judicata in another state for reasons analogous to those mentioned in subsec-

tion 1 In a European Union member state the provisions shall apply to the following crimes defined in European Union Law

1) participation in a criminal organisation as defined in Article 2(1) of the Council Joint Action

98773JHA on making it a criminal offence to participate in a criminal organisation in the

member states of the European Union

2) corruption as defined in Article 3 of the Council Act of 26 May 1997 drawing up on the ba-

sis of Article K3(2)(c) of the Treaty on European Union the Convention on the fight against

corruption involving officials of the European Communities or officials of member states of the

European Union and Article 2(1)(a) of the Council Framework Decision 2003568JHA on com-

bating corruption in the private sector

3) fraud within the meaning of Article 1 of the Convention relating to the protection of the fi-nancial interests of the European Communities

4) a terrorist offence as defined in Article 1 of the Council Framework Decision 2002475JHA

an offence associated with terrorist activities as defined in Article 3 or instigation aiding and abetting or attempt as defined in Article 4 and

22

5) money laundering as defined in Article 1 of Council Directive 91308EEC on prevention of

the use of the financial system for the purpose of money laundering or financing of terrorism

A derogation from the requirement to exclude from the participation in competitive bidding a

candidate or tenderer who has been the subject of a conviction for a reason referred to in this

Section may be provided for overriding requirements in the general interest or subject to the

condition that the convicted person no longer holds a responsible position in the undertaking submitting the tender

Section 48

Other criteria for exclusion

The contracting authorityentity may make the decision to exclude from participation in com-petitive bidding a candidate or tenderer which

1) is bankrupt or is being wound up or has ceased operations where it has entered into an

arrangement with creditors or a reorganisation plan or is in an analogous situation arising from a similar procedure under the law

2) is the subject of proceedings for declaration of bankruptcy for an order for compulsory

winding up or of proceedings for other procedures referred to in point 1

3) has been convicted by judgment that has the force of res judicata of any offence concerning hisher professional conduct such as breaching the obligations concerning export control

4) has been guilty of grave professional misconduct such as breaching its obligations concern-

ing information security and security of supply or a similar offence in association with a previ-ous contract which the contracting authorityentity can prove

5) whose reliability has been proven to be inadequate to the degree where a risk to national

security cannot be excluded

6) has not fulfilled obligations to pay taxes or social security contributions in Finland or in the

country in which it is established or

7) is guilty of serious misrepresentation in supplying the information to the contracting au-

thorityentity required to apply the provisions of this Chapter or has neglected to provide the required information

The provisions laid down in subsection 1 points 3 and 4 shall apply in cases where the person

guilty of a mistake or negligence is a director or any person having powers of representation

decision or control in respect of the candidate or tenderer The decision on the exclusion may

take account of other matters such as the seriousness of the offence or omission the connec-

tion with the object of the contract the time lapsed any other implications of the offence and

any remedial action taken by the person convicted of the offence or omission

Section 49

Verification of the criteria for exclusion

The contracting authorityentity may request that the candidates and tenderers and the com-

petent authorities of other European Union member states in accordance with the appropriate

regulations submit evidence and clarifications in order to verify whether the exclusion criterion referred to in Section 47 or 48 applies to the candidate or tenderer

As regards Section 47 and Section 48(1)(3) the contracting authorityentity shall accept as

evidence an extract from the criminal record issued by a competent authority in the country in

which the tenderer is established As regards Section 48(1)(2 6) a certificate issued by the competent authority shall also be accepted as evidence

Where the country in which the candidate or tenderer is established does not issue such ex-

tracts or documents they may be replaced by a declaration on oath or by a solemn declaration

under the law of the country in which the representative of the candidate or tenderer is estab-

lished

23

Section 50

Requirements and references relating to the suitability of candidates and tenderers

The contracting authorityentity may set requirements relating to the candidates or tenderers

financial and economic standing technical capacity professional ability information security

security of supply and requirements concerning quality and request that the candidates and tenderers submit the related reports

In order to verify the requirements and that the requirements are satisfied the references re-

quested shall be related to the candidates or tenderers ability to perform the contract and

they shall be in proportion to the subject matter purpose and scope of the contract Require-

ments and references shall be indicated in the contract notice Candidates or tenderers failing

to satisfy the minimum requirements set by the contracting authorityentity shall be excluded from participation in the competitive bidding

The contracting authorityentity shall indicate in the contract notice any objective and non-

discriminatory criteria and rules which it shall apply in restricted procedures negotiated pro-

cedures or in the competitive dialogue procedure to admit candidates or tenderers to the com-

petitive bidding or negotiations The contracting authorityentity shall state the minimum

number of candidates and where appropriate also the maximum number of candidates

The contracting authorityentity may invite candidates or tenderers to supplement or clarify

the references and other documents

Section 51

Register data

The contracting authorityentity may request that the candidate or tenderer prove under the law of the country in which it is established that

1) it is registered in a professional or trade register

2) it carries out a trade by providing a declaration on oath or certificate and

3) it is entitled to provide a service in the country in which it is established by providing a li-cense or a certificate of membership of an organisation

Section 52

Economic and financial standing

The contracting authorityentity may request that a candidate or tenderer furnish proof of its financial and economic standing by references such as

1) a statement from a bank or credit institution or evidence of professional risk indemnity in-surance

2) a profit and loss account balance sheet annual report financial statements and group fi-

nancial statements if these must be published in the country in which the candidate or ten-

derer is established and

3) a statement of the undertakings overall turnover and turnover in the area that is the object

of the contract for a maximum of the three most recent fiscal periods if information on these turnovers is available

If for any valid reason the candidate or tenderer is unable to provide the documents request-

ed by the contracting authorityentity it may demonstrate its economic and financial standing

by any other document which the contracting authorityentity considers appropriate

24

Section 53

Technical capacity and professional ability

The contracting authorityentity may request that the candidate or tenderer furnish proof of its

technical capacity and professional ability by the following documents

1) the educational and professional qualifications of the candidate or tenderer or those of the

management of the undertaking and in particular those of the persons responsible for man-

aging the work or providing services or products that involve siting or installation functions or services

2) a list of the works carried out over a period not exceeding the past five years accompanied

by a certificate of satisfactory execution of the most important works the certificate shall indi-

cate the value date and site of the works and shall specify whether they were carried out ac-

cording to the rules of the trade and properly completed where appropriate a competent au-thority shall submit these certificates to the contracting authorityentity directly

3) a list of the principal deliveries carried out or the main services provided over a period not

exceeding the past five years with the sums dates and recipients involved where the recipi-

ent was a public body the list shall be verified by the competent authority where the recipient

was a private purchaser by the purchasers certification or failing this by a declaration of the

candidate or tenderer

4) an indication of the technical experts or bodies involved whether or not they belong directly

to the candidate or tenderer especially those responsible for quality control and in the case of

public works contracts those experts and bodies upon whom the contractor can call in order to carry out the work

5) the candidates or tenderers description of the tools equipment and actions by which it

ensures quality as well as the research and testing equipment required to implement the con-tract and the internal rules regarding industrial property and copyrights

6) a certificate for the inspection carried out by the candidate or tenderer or on its behalf by a

competent official body of the country in which the candidate or tenderer is established regard-

ing the candidatersquos or tendererrsquos production capacities technical capacity research or trial sys-

tems or quality control measures which it will implement

7) a statement of the average annual manpower of the service provider or contractor and the number of managerial staff for the last three years as a maximum

8) a statement of the tools fixtures technical equipment number of personnel know-how and

sources available to the service provider or tenderer for carrying out the contract for fulfilling

the additional needs that may arise from any crisis that the contracting authorityentity may

undergo or for the maintenance modernisation or adaptation of the products that are the ob-

ject of the contract in addition information on the geographic location of the tools fixtures

technical equipment number of personnel know-how and sources in the event that these are located outside of the European Union

9) with regard to the products to be supplied samples descriptions and photographs the au-

thenticity of which must be certified if the contracting authorityentity so requests and certifi-

cates drawn up by an official quality control institute or agencies of recognised competence

attesting to the conformity of the products to be supplied with technical specifications or standards and

10) with regard to public contracts having as their object supplies requiring a service or siting

or installation work an indication of professional ability efficiency experience and reliability

If appropriate to the object of the contract the contracting authorityentity may request that

the candidate or tenderer provide an indication of the environmental management measures to

be applied when performing a public works or service contract Should the contracting authori-

tyentity require the production of certificates drawn up by independent bodies attesting the

compliance of the tenderer with environmental management standards it shall refer to the

Community eco management and audit scheme (EMAS) or to the environmental management

standards based on relevant European or international standards certified by bodies conform-

25

ing to Community law or relevant European or international standards concerning certification

The contracting authorityentity shall accept equivalent certificates from bodies established in

other European Union member states and other evidence of equivalent environmental man-agement measures from the suppliers

If appropriate to the object of the contract the contracting authorityentity may request that

the candidate or tenderer provide an indication of the quality assurance measures Should the

contracting authorityentity require the production of certificates drawn up by independent

bodies attesting to the compliance of the tenderer with quality assurance standards the con-

tracting authorityentity shall refer to quality assurance systems based on relevant European

standards series certified by bodies conforming to the European standards series concerning

certification The contracting authorityentity shall accept equivalent certificates from bodies

established in other European Union member states and other evidence of equivalent quality assurance measures from the tenderers

If for any valid reason the candidate or tenderer is unable to provide the documents request-

ed by the contracting authorityentity it may demonstrate its economic and financial standing by any other document which the contracting authorityentity considers appropriate

Section 54

Requirements on information security set for candidates and tenderers

If classified documents are submitted drawn up or otherwise dealt with to carry out a call for

tender the contracting authorityentity may set requirements for candidates or tenderers to

meet the information security requirements laid down for authorities The contracting authori-

tyentity may request candidates or tenderers to provide commitments or information which

prove their capacity to meet the information security requirements

For candidates who have not obtained the certificate or commitment referred to in Section 1

the contracting authorityentity may grant additional time to obtain the certificate or commit-

ment In that case a deadline shall be set for the delivery of these In addition to the com-

mitments and information provided by the candidate the contracting authorityentity may render and consider any supplemental investigations it has conducted

Section 55

Legal form of the candidate and the tenderer and indication of the responsible per-sons

A candidate or tenderer which under the legislation of the country in which it is established is

entitled to provide the services that are the object of the contract may not be rejected solely

on the ground that under the legislation of the European Union member state in which the contract is awarded it would be required to be either a natural or legal person

In the case of public service and public works contracts as well as public supply contracts in-

volving siting and installation operations the contracting authorityentity may require candi-

dates and tenderers to indicate in the tender or the request to participate the names and pro-

fessional qualifications of the persons responsible for carrying out the services or the work in question

Section 56

Groups participating in the competitive bidding and reliance on the capacities of oth-er entities

Groups of suppliers may submit tenders or put themselves forward as candidates The con-

tracting authorityentity may not require these groups of candidates or tenderers to assume a

specific legal form in order to submit a tender or a request to participate However the group

may be required to do so during the term of the contract to the extent that this change is necessary for the satisfactory performance of the contract

26

A candidate or tenderer may rely on the capacities of other entities regardless of the legal na-

ture of the links it has with them to carry out the contract A group may rely on the abilities of

participants in the group or in other entities in order to perform the contract The candidate or

tenderer or a group thereof shall furnish the contracting authorityentity with proof that the

requirements relating to economic and financial standing technical capacity and professional

ability and other requirements are satisfied This proof may include contracts between compa-

nies or other binding documents demonstrating that the capacities to satisfy the requirements are accessible by the candidates or tenderers

Section 57

Selecting the tender

The contract awarded shall be either the economically most advantageous tender from the

point of view of the contracting authorityentity in accordance with the comparison criteria

linked to the object of the contract or the lowest in price When the award is made to the eco-

nomically most advantageous tender the criteria may include for example quality price

technical merit aesthetic and functional characteristics environmentally friendly characteris-

tics running costs costs associated with a long life cycle cost effectiveness after-sales ser-

vice and technical assistance delivery date delivery period and period of completion security of supply and interoperability and functional characteristics

The contracting authorityentity shall specify in the contract notice or the invitation to tender

documentation the comparison criteria and the relative weighting which it gives to each of the

criteria chosen to determine the economically most advantageous tender In the competitive

dialogue procedure the equivalent information shall be specified in the contract notice or the

project description The weighting may also be specified by indicating a reasonable range If it

is not reasonably possible to specify the relative weighting of the comparison criteria they

shall be specified in the order of importance

Section 58

Abnormally low tenders

The contracting authorityentity may reject tenders that are abnormally low in relation to the

quality and scope of the contract Before it may reject a tender the contracting authori-

tyentity shall request in writing a written report from the tenderer on the constituent ele-ments of the tender

The request referred to in subsection 1 may relate in particular to the economic and technical

solutions chosen for the manufacture of the goods supply of the service or execution of the

work exceptionally favourable conditions for the execution of the contract the originality of

the proposed solution employment protection at the place where the contract is executed and

compliance with the provisions relating to working conditions or the possibility of the tenderer

receiving state aid The contracting authorityentity shall verify the constituent elements of the tender taking into account the evidence supplied

The contracting authorityentity may reject a tender which is abnormally low in price because

the tenderer has obtained state aid illegally The tender can be rejected only after a sufficient

time limit has been fixed for the tenderer to prove that the state aid in question was granted

legally If the contracting authorityentity rejects the tender because of illegal state aid it shall report the matter to the European Commission

Section 59

Taking account of a subsidy awarded by the contracting authorityentity in the com-parison of tenders

If the tenderer is an entity belonging to the contracting authorityentitys organisation or if the

contracting authorityentity has granted or will grant the tenderer a financial subsidy which will

affect the price of the tender in the comparison of the tenders the contracting authorityentity

27

shall take into account the factors which will genuinely affect the price of the tender paid by

the contracting authorityentity such as the financial subsidy in question

Chapter 9 Subcontract agreements

Section 60

Subcontracts with related companies

The contracting authorityentity may request the tenderer to state in its tender which part of

the contract it plans to award as a subcontract to related companies and to list these compa-

nies The contracting authorityentity may also request tenderers submitting tenders as a

group as defined in Section 56 to indicate in their tender which part of the contract they plan

to award as a subcontract to their related companies and to list these companies If the rela-

tionships between the companies change during the procurement procedure the tenderer shall update the information included in its tender

A related company means a company which is under the direct or indirect control of the ten-

derer or which has direct or indirect control of the tenderer or which jointly with the tenderer

is under the control of another company on the basis of ownership financial contribution or the

regulations under which the company operates A company is considered to have control of

another company when it owns the majority of that companys unrestricted shareholder equity

controls the majority of the companys shareholders voting rights or may appoint half of the

members of the companys administrative managerial or supervisory body

The provisions of Sections 62-66 of this Act concerning subcontracting agreements are not

applicable to subcontracting agreements which the tenderer has entered into with a related

company or when the tender has been submitted by a group as defined in Section 56 to a

company belonging to the same group or a company which is a related company of a company

belonging to the group

Section 61

Selecting a subcontractor

The tenderer may select its subcontractors in all subcontracting agreements unless otherwise prescribed in Sections 62ndash66 of this Act

Section 62

Requirements concerning subcontracting agreements

The contracting authorityentity shall define the requirements for a subcontracting agreement

in the contract notice and further specify them in the invitation to tender In defining the re-

quirements for subcontracting agreements the principles of proportionality and non-discrimination must be complied with

The contracting authorityentity may require that the tenderer state in the tender which part

or parts of the contract it plans to subcontract to third parties the content of the subcontract-ing agreement and the chosen subcontractors shall also be stated

In addition to the provisions of subsection 2 the contracting authorityentity may require that

the tenderer selected as a contracting party shall

1) in accordance with the procedures laid down in Sections 64ndash66 of this Act invite bids on

part or all of the subcontracts included in the tender and stated in the notice in accordance with subsection 2 or

2) award the minimum amount of the contract value as defined by the contracting authori-

tyentity to third parties as subcontracts and invite bids on these subcontracts in accordance

with the procedures laid down in Sections 64ndash66 of this Act The contracting authorityentity

shall in that case define as percentages the minimum and maximum amount the tenderer shall

award to third parties as subcontracts and require that the tenderer state in its tender which

28

part or parts of the contract it plans to award to third parties as subcontracts in order to fulfil

the requirement of the contracting authorityentity The maximum amount defined by the con-tracting authorityentity shall not exceed 30 percent of the value of the contract or

3) invite bids on a part or parts of the subcontracts which it plans to award to third parties in

addition to the subcontracts mentioned in point 2 above In that case the contracting authori-

tyentity shall require that the tenderer specify in its tender those parts of the contract which it

plans to award as subcontracts to third parties in addition to the subcontracts mentioned in point 2 above

In addition to the provisions of subsections 2 and 3 the contracting authorityentity may re-

quire that the tenderer report any changes occurring at the subcontractor level during the im-

plementation of the contract

The contracting authorityentity shall set the maximum and minimum amount as defined in

subsection 3 point 2 having regard to the object and value of the contract and the character of the industry sector in question the competitive situation and technical capacity

The tenderer has the right to award more subcontracts to third parties than required by the contracting authorityentity in accordance with this Section

Section 63

Rejecting a subcontractor

The contracting authorityentity may specify requirements concerning the subcontractors fi-

nancial and economic situation technical capacity and professional competence information

security security of supply or quality These as well as other requirements concerning the

suitability of the subcontractor shall be stated in the contract notice These requirements shall

be equitable and non-discriminatory and conform to the requirements set in the invitation to tender concerning the suitability of the candidate or tenderer

The contracting authorityentity may decide to reject a subcontractor selected by the tenderer

during the contract procedure or the implementation of the contract if the subcontractor does

not meet the requirements set in the contract notice concerning the suitability of the subcon-

tractor or the exclusion criterion laid down in Section 47 or Section 48 applies to the subcon-

tractor The contracting authorityentity shall justify the rejection in writing to the tenderer

Section 64

Implementation of subcontracts

A tenderer selected as a contracting party shall act openly and treat any and all subcontractors

equally and in a non-discriminatory manner

A tenderer selected as a contracting party shall provide for the publication a subcontract notice

concerning those subcontracts to which the bidding obligation laid down in Section 62(3) ap-

plies and whose estimated value without value added tax exceeds the EU thresholds men-

tioned in Section 12 The notice obligation shall not apply to a subcontract which fulfills the

requirement set for a direct contract award mentioned in Sections 22ndash23 The provisions of

Sections 14ndash16 shall apply to the calculation of the estimated value of subcontracts

The tenderer selected as the contracting party shall specify in the subcontract notice the crite-

ria which the tenderer will apply in assessing the suitability of the subcontractors and in select-

ing them These criteria shall be equitable and non-discriminatory and conform to the criteria

that the contracting authorityentity applies in assessing the suitability of the tenderers The

requirements shall be related to the object of the subcontract and be proportional to the scope

of the subcontract

A tenderer selected as a contracting party may publish a subcontract notice also concerning

those subcontracts which meet the criteria for the subcontracts referred to in Sections 22ndash23

29

Section 65

Exemption from an obligation related to subcontracting

A tenderer selected as a contracting party may not be required to enter into a subcontract if it

indicates in a manner satisfactory to the contracting authorityentity that none of the subcon-

tractors that participated in the competition or none of their tenders fulfil the requirements

set in the subcontract notice and therefore the tenderer selected as a contracting party could

not fulfil the contract requirements

Section 66

Framework agreements

The provisions of Section 62 shall not apply to subcontracts awarded by the tenderer selected

as a contracting party if the framework agreement was put out to tender in accordance with

the provisions of Section 64

Subcontracts based on a framework agreement shall be awarded in accordance with the condi-

tions confirmed in the framework agreement and concluded between the original participants

to the framework agreement Conditions analogous to those of the framework agreement shall be complied with in subcontracting agreements

The framework agreement may not be used in such a way as to distort restrict or prevent

competition

The term of the framework agreement may not exceed seven years In exceptional cases the

framework agreement may be longer in duration when duly justified by the expected life cycle

of the supplies equipment and systems delivered and the technical problems that might re-

sult from the change of supplier

Section 67

The responsibility of the tenderer for carrying out the contract

The requirements set by the contracting authorityentity on the basis of this Chapter and the

notices issued by the tenderers based on them do not limit the responsibility of the tenderer

selected as a contracting party to carry out the contract PART III

National procedures

Chapter 10 Tendering procedures for contracts below the EU threshold for second-

ary service contracts referred to in Annex B and for certain other contracts

Section 68

Contract award procedures

The contract award procedures specified in this Chapter may be used for service contracts

public works contracts and the service contracts referred to in Annex A which are below the EU

threshold referred to in Section 12(1) but above the national threshold referred to in Section

13(1) and for secondary service contracts referred to in Annex B which are above the national

threshold referred to in Section 13(1)

The procedures laid down in this Chapter may also be used for defence contracts referred to in

Section 5 when the value of the defence contracts exceed the national threshold as referred to

in Section 13 provided that the criteria set in Article 346(1)(b) of TFEU are fulfilled

30

Section 69

General rules of procedure

The contracting authorityentity shall aim to take advantage of the prevailing competitive con-

ditions and award the contract primarily through competitive bidding A sufficient number of

tenders shall be requested in terms of the scope and subject matter of the contract to ensure

competition

A public notice shall be issued however the publication obligation does not apply in the case

of contracts that fulfil the criteria set in Article 346(1)(b) of TFEU

The contracting authorityentity may request a tender directly from one supplier if competitive

bidding cannot be carried out for reasons justified on the basis of national defence state secu-rity or security of supply

The contracting authorityentity may also request a tender directly from one supplier if

1) no tenders or no suitable tenders were received in the competitive bidding carried out

previously a further requirement is that the conditions of the original invitation to ten-

der are not fundamentally changed

2) for technical reasons or for reasons connected with the protection of exclusive rights the contract may be awarded only to a particular supplier

3) for reasons of urgency brought about by a crisis it is not possible to carry out competi-tive bidding

4) execution of the contract is absolutely necessary and competitive bidding cannot be

carried out for reasons of extreme urgency brought about by events unforeseeable by

and independent of the contracting authorityentity

5) the product to be acquired are manufactured purely for scientific or research purposes

and it is not a matter of establishing commercial viability of the products or to recover research and development costs

6) the object of the contract is a research and development service that has not been ex-cluded from the scope of this Act on the basis of Section 8

7) the contract is necessary in order to determine whether the final result of the research

and development service is suitable to be used as intended by the contracting authori-tyentity

8) the object of the contract consists of supplies quoted and purchased on a commodity market

9) the supplies are purchased on particularly advantageous terms from either a supplier

winding up its business activities or from the receivers of a bankruptcy or liquidators in

insolvency proceedings an arrangement with creditors or a similar procedure

10) the object of the contract is a second-hand product

11) the object of the contract is based on a supplementary contract right incorporated into

the contract

12) the object of the contract is additional deliveries by the original supplier which are in-

tended either as a partial replacement of existing supplies or installations or as the ex-

tension of existing supplies or installations and a change of supplier would result in in-

compatibility or disproportionate technical difficulties in operation and maintenance

13) the object of the contract is additional works or services not included in the project ini-

tially but which have through unforeseen circumstances become necessary for the per-

formance of the works or services as originally described

31

Section 70

Negotiations with tenderers and specifying the tender and the invitation to tender

The contracting authorityentity may discuss all aspects of the contract with the tenderers dur-

ing the negotiation provided that the negotiations do not result in changing constituent ele-

ments in the invitation to tender in a discriminating manner or in a manner which distorts

competition

The purpose of the negotiations shall be to select the best tender in accordance with Section

73(2) or to determine one or more alternative solutions for contract implementation before

sending the final invitation to tender The dialogue may take place in successive stages in or-

der to reduce the number of tenders or solutions to be discussed during the dialogue by apply-

ing the comparison criteria indicated in the invitation to tender or project description

In competitive bidding the requirement for negotiations shall be that the negotiations and the

criteria to be complied with during the negotiations have been stated in the invitation to tender

or the project description

The contracting authorityentity shall ensure equal treatment of all candidates and tenderers

during the negotiations and shall not provide information in a manner that may compromise

the equal treatment of the participants in competitive bidding

Section 71

Invitation to tender

The invitation to tender shall be submitted in writing and drawn up to be sufficiently clear in

order to enable submission of commensurate and mutually comparable tenders The invitation

to tender shall contain all information that is particularly important in terms of the contracting

procedure and submitting the tender

The invitation to tender shall include the award criterion and where the criterion for the award is that of the economically most advantageous tender the comparison criteria and the ranking thereof The invitation to tender shall indicate a reasonable time allotted for the tenderers to submit a tender taking into consideration the scope and subject matter of the contract

The contracting authorityentity may charge a reasonable fee for the invitation-to-tender doc-

uments to recover the costs arising from the exceptionally extensive scope of the documenta-

tion the materials related thereto or other similar factors

Section 72

Drawing up the invitation to tender and submitting the tender

The invitation to tender and the tenders based thereon shall be drawn up in writing They may be executed orally only in exceptional circumstances if the written procedure is justifiably not appropriate If the invitation to tender or the tenders are not drawn up in writing a record shall be kept of the negotiations held with the tenderers the record shall indicate the infor-mation impacting the course of the procedure and the position of the tenderers

Section 73

Selection of a tender and a tenderer rejecting a tender

The contracting authorityentity may exclude from the competitive bidding any supplier which

taking into consideration the scope and object of the contract and other criteria does not pos-

sess the qualifications to carry out the contract The contracting authorityentity may exclude

32

from the competitive bidding any tender submitted by a tenderer who does not possess the

qualifications to carry out the contract when taking into consideration the scope and object of

the contract and other criteria

The contracting authorityentity shall award the contract to the tenderer whose tender has the

lowest price or complies with the comparison criteria set in the invitation to tender and is eco-

nomically the most advantageous

The contracting authorityentity may reject a tender which does not fulfil the essential condi-

tions set in the invitation to tender or has an abnormally low price in terms of the subject mat-

ter and scope of the contract Before it may reject a tender the contracting authorityentity

shall request in writing details of the constituent elements of a tender that is abnormally low in

price

PART IV

General provisions on decisions concerning contract awards conclusion of contracts

procurement rectification public access to the contract documents and further provi-sions

Chapter 11

Decisions concerning the award of contracts and notification thereof

Section 74

Decision concerning the award

The contracting authorityentity shall provide in writing the decisions affecting the position of

the candidates and tenderers and the results of the tendering procedure including the grounds for the outcome of the procedure

The decision or the related documentation shall state the factors that fundamentally affected

the outcome including the grounds for rejecting the candidate tenderer or tender and the

grounds on which the accepted contracts were compared As regards a decision concerning

asking for bids for a contract based on a framework arrangement stating the facts showing

that the selection and award criteria have been applied as required under Section 27 shall

suffice If the standstill period referred to in Section 79 applies to the contract the decision or

the related documents shall also state the period of time after which the contract may be awarded

The contracting authorityentity is not required to make a decision referred to in this Section

concerning a contract for the additional supplies referred to in Section 23 or Section 69(4)(12)

and additional service or contract referred to in (13) or the temporary arrangements for a con-tract referred to in Section 95

In contracts based on framework agreements the contracting authorityentity is not required to make the decision referred to in this Section if

1) the contract is awarded in accordance with the conditions laid down in the framework

agreement without asking for bids or

2) the competitive bidding is based on a framework agreement when the value of the contract

does not exceed the EU threshold

33

Section 75

Suspending the contract award procedure

The contract award procedure can be suspended only for verifiable and justifiable reason

The provisions of Section 74 concerning contract ruling shall apply to the suspension of the

contract award procedure

Section 76

Appeal instructions and instructions for request for rectification

Instructions for appeal shall accompany the decisions made by the contracting authori-

tyentity explaining how to refer a case to the Market Court for consideration contact infor-

mation of the contracting authorityentity for the notice referred to in Section 90 and instruc-

tions for seeking rectification (petition instructions) explaining how the candidate or tenderer can have the case submitted for reconsideration through procurement rectification

With regard to the issuing and amending appeal and petition instructions the provisions of

Chapter 3 of the Administrative Judicial Procedure Act (5861996) shall apply in terms of ap-

peals and the provisions of Chapter 7 of the Administrative Procedure Act (4342003) shall

apply in terms of petition instructions

Section 77

Notification of the decision concerning the contract award

The decision of the contracting authorityentity including the grounds for the decision and the

appeal and petition instructions shall be submitted in writing to the parties concerned The de-

cision including the aforementioned documents shall be submitted using the electronic con-

tact information which the candidate or tenderer has given to the contracting authorityentity

When using the electronic contact information the candidate and tenderer shall be considered

to have received notice of the decision and the accompanying documents on the date on

which the electronic message containing the aforementioned documents is available in the re-

cipients reception equipment such that the message can be handled Such a point in time shall

mean the date on which the message was sent unless a reliable explanation concerning the

malfunction of telecommunications links or another analogous reason because of which the

electronic message reached the recipient later When electronic notification is used the con-

tracting authorityentity shall include in the message a separate note concerning the date

when the message was sent

The decision including the grounds for it and the appeal and petition instructions may also be

sent via regular mail under the Administrative Procedure Act Candidates and tenderers shall

be considered to have received notification of the decision and the accompanying documents

on the seventh day from the date on which they were sent unless the candidate or tenderer

proves that the notification occurred at a later date

Notification on the decision of the contracting authorityentity shall be issued without undue

delay at the latest 15 days from the date on which the contracting authorityentity receives a written request concerning notification on the decision that was made

34

Chapter 12

Public contract

Section 78

Concluding a public contract

Having made the decision to award a public contract the contracting authorityentity shall

conclude the contract The contract is concluded upon signing a written agreement

Section 79

Standstill period

In the case of a contract above the EU threshold referred to Section 12 above the contract can

be concluded at the earliest 21 days from the date when the candidate or tenderer received or is considered to have received the decision and instructions for appeal (standstill period)

A standstill period shall not be applied in direct contract awards

The provisions of Section 92 shall apply to the effect of an appeal on concluding a contract

Section 80

Exceptions to the compliance with the standstill period

The standstill period need not be upheld if

1) the contract concerns a procurement carried out on the basis of the framework agreement in accordance with Section 27

2) the contract is awarded to the tenderer who submitted the only acceptable tender and no

other tenderers or candidates remain in the competitive bidding whose position would be af-

fected by the selection of a co-contractor

3) the contract concerns a procurement referred to in Section 68(2)

Section 81

Notification of direct awards and conclusion of public contracts

In direct awards exceeding the EU threshold the contracting authorityentity may after hav-

ing made the award decision send a notice for publication concerning the direct award of con-

tract before concluding the contract In that case the contract can be concluded at the earli-est 14 days after the publication of the notice in the Official Journal of the European Union

Chapter 13

Procurement rectification

Section 82

Rectification of a procurement

The contracting authorityentity may remove an incorrect decision or annul an award decision

made during the contracting procedure concerning the legal status of the candidates or ten-

35

derers and make a new decision (procurement rectification) if the award decision or other deci-

sion reached during the contracting procedure is based on an error that occurred in the appli-cation of the law

Amending an award decision or other decision does not require the consent of the party con-

cerned However an award decision or other decision cannot be amended through procure-

ment rectification if the contract has been concluded

Section 83

Initiation of procurement rectification

The contracting authorityentity may take up a procurement rectification on its own initiative

or in response to a demand of the party in question The contracting authorityentity shall noti-fy the concerned parties immediately of the initiation of a procurement rectification

A subcontractor does not have the status of a concerned party referred to in subsection 1 of this section in terms of the matter concerning the contract

The concerned party shall present the demand within 14 days after receipt of the notification

of the award decision or other decision made by the contracting authorityentity during the

contracting procedure The contracting authorityentity itself may amend the award decision or

other decision no later than 60 days after the date the decision concerning the procurement rectification is made

Appealing the case to the Market Court does not prevent a procurement rectification or its pro-

cessing A procurement rectification may also apply to a decision of the contracting authori-

tyentity that has become legally binding if the case has not been submitted to the Market

Court for ruling

Section 84

Effect of the processing of procurement rectification on the proceedings in the Mar-ket Court

The initiation and processing of a procurement rectification do not affect the time limit within

which the concerned party has the right pursuant to this Act to submit an appeal against the

decision to the Market Court

If the award decision or other decision that was reached during the contract award procedure

is to be amended and has been appealed against before the Market Court the Market Court

shall be notified of the processing of the case through procurement rectification and informed

of the decision reached In processing a procurement rectification the contracting authori-

tyentity may prohibit the enforcement of the award decision or other decision or order it to be

suspended The Market Court shall be notified of a prohibition or suspension of enforcement if an appeal has been lodged against the decision in the Market Court

If the contracting authorityentity amends its award decision or other decision by means of a

procurement rectification such that as a result the appellant to the Market Court no longer has

the need for judicial relief or the need for a justified decision the Market Court may decline to

process such a case without giving a ruling on the principal claim

Section 85

The application of procurement rectification to other contracts

A procurement rectification can also be applied to amend an award decision or other decision

made by the contracting authorityentity during the contracting procedure to which this Act

36

shall not apply pursuant to Section 6(2) and Sections 7 8 or 13 A decision made on account

of such a contract rectification may not be appealed against in the Market Court or under the Administrative Judicial Procedure Act or Local Government (Act 3651995)

Chapter 14

Public access to the contract documents

Section 86

Application of the provisions concerning public access to the contract documents

The Act on the Openness of Government Activities (6211999) shall apply to public access to

the documents of the contracting authorityentity and the fees charged for the documents if

the contracting authorityentity is the authority referred to in Section 4 of the aforementioned

Act or if it is obliged to comply with that Act on the basis of a provision contained elsewhere in the Act

In terms of the right of parties other than the participants in the competitive bidding conducted

by the contracting authorityentity referred to in subsection 1 to have access to the docu-

ments drawn up and received for processing of the tender and the confidentiality obligation of

those employed by the contracting authorityentity the provisions of the Act on the Openness

of Government Activities shall apply to the right of concerned parties to have access to the

document to how public access to the document is determined and to the processing and resolving of the matter concerning access to information

The decision of the contracting authorityentity which has resolved the matter concerning ac-

cess to information can be appealed in accordance with the provisions of Section 33 of the Act

on the Openness of Government Activities The Supreme Administrative Court in whose judicial

district the contracting authorityentity is located is the competent Supreme Administrative

Court for considering the appeal submitted on the basis of a decision made by a party other

than the contracting authorityentity acting as an authority

Chapter 15

Appealing and the implications thereof

Section 87

Parties entitled to appeal

A concerned party may appeal the matter to the Market Court by issuing a complaint A sub-

contractor does not have the position of an interested party referred to in subsection 1 of this Section in terms of the matter concerning the contract

In matters concerning control procedures of the European Union the Ministry of Economic Af-

fairs and Employment may also refer the matter to the Market Court for consideration

Section 88

Object of the appeal

An appeal may be lodged before the Market Court against an award decision of the contracting

authorityentity referred to in this Act or other decision reached by the contracting authori-

tyentity during the contracting procedure which affects the status of the candidate or the ten-derer

37

An appeal may not be lodged before the Market Court against an award decision or other deci-

sion of the contracting authorityentity which concerns only the preparation of the contracting

procedure An appeal may not be lodged against a decision or other measure taken by the

supplier selected as a contracting party concerning a subcontracting agreement or an award

decision or determination made by the contracting authorityentity during the implementation of the contract

A contract based on a framework agreement referred to in Section 27 above and a contract

referred to in Section 68(2) may not be appealed unless a processing authorisation is issued by the Market Court The authorisation shall be issued if

1) the processing of the case is important in terms of applying the Act in other similar matters

or

2) there is a cogent reason for it related to the procedures of the contracting authorityentity

Section 89

Time period for appeal

Unless otherwise prescribed in this Section an appeal must be lodged in writing within 14 days

from the date when the candidate or tenderer received the notice concerning the contract with the instructions for appeal

If the contracting authorityentity has concluded a public contract after the contract decision

was issued on the basis of Section 80 point 1 without complying with the standstill period

the appeal shall be lodged within 30 days from the date when the tenderer has received notice

of the decision with the instructions for appeal

An appeal before the Market Court shall be lodged within six months of the date of the contract

decision provided that the candidate or tenderer has received notice of the contract decision

and the contract decision or appeal instructions were materially deficient or the appeal instruc-tions have been missing altogether

If the contracting authorityentity has with regard to a contract above the EU threshold re-

ferred to in Section 12 above delivered a notice regarding a direct award of contract for publi-

cation in the Official journal of the European Union the complaint must be lodged within 14 days from the publication of the notice

If the notice referred to in subsection 4 has not been published the appeal concerning a direct award of contract shall be lodged

1) within 30 days of the date of publication of a contract-award notice has been published in

the Official Journal of the European Union or

2) within six months from the conclusion of the contract at the latest

Section 90

Notification of appeal to the contracting authorityentity and the list of procurement

cases

The appellant in a contract-related matter must notify the contracting authorityentity in writ-ing of referring the case to the Market Court for consideration

The notification must be delivered to the contracting authorityentity at the latest when the

complaint concerning the contract is delivered to the Market Court The notification shall be delivered to the address provided by the contracting authorityentity

38

The Market Court shall maintain and publish a list which is as comprehensive and up-to-date

as possible of contract-related matters pending at the Market Court

Section 91

The contracting authorityentity as the opponent and compensation of legal costs

In the proceedings regarding contract-related matters the contracting authorityentity shall be considered the opponent of the party or agency lodging the appeal

The provisions of Section 74 subsections 1 and 2 of the Administrative Judicial Procedure Act shall apply to the compensation of legal costs regarding contract-related matters

The provisions of Section 74 subsections 1 and 2 of the administrative Judicial Procedure Act

concerning public authorities or other public parties shall apply to the decision concerning the

liability to provide compensation for the legal costs of the opponent If one contracting authori-

tyentity has been responsible for the contracting procedure on behalf of the other contracting

authorities the obligation regarding compensation of legal costs may be placed on the con-

tracting authorityentity which acted on behalf of the other contracting authorities

Section 92

The effect of the appeal on concluding the contract

In case of a contract where the standstill period or the time limit referred to in section 81 must

be observed the contracting authorityentity may not conclude the contract if the matter has

been brought up for consideration by the Market Court

If the Market Court decides a case concerning enforcement or decides on the principal claim

before the standstill period or the time limit referred to in Section 81 has expired the contract-

ing authorityentity shall observe the standstill period or the time limit referred to in Section

81 until the end of the period notwithstanding the ruling of the Market Court

Section 93

Interim decisions of the Market Court

While the appeal is under consideration the Market Court may prohibit suspend or allow the

implementation of the decision concerning the contract award or order the contracting proce-

dure to be suspended otherwise as an interim measure for the duration of the proceedings in the Market Court

When deciding on the measure referred to in subsection 1 the Market Court shall take into

consideration that the harm caused by the measure to the opponent the rights of third par-

ties the security of the state or the public interest may not outweigh its benefits

However the decision prescribed in subsection 1 of this Section cannot be carried out in the case of a contract referred to in Section 68(2) of this Act

A legally trained member of the Market Court may alone issue a ruling as an interim measure

Section 94

Interim commitment of the contracting authorityentity

While the appeal is under consideration the contracting authorityentity may provide a written

undertaking to the Market Court stating that it will not enforce the decision concerning the contract for as long as the matter is pending in the Market Court

39

If the contracting authorityentity provides the Market Court with the undertaking referred to

in subsection 1 the Market Court will not issue without a specific reason a decision on the

obligation to interim prohibition on implementing the decision to award the contract

Section 95

Temporary organisation of a contract

If an appeal has been lodged against a contract before the Market Court the contracting au-

thorityentity may temporarily organise the contract by ordering it from a supplier who partici-

pated in the contracting procedure or from a previous supplier if the nature of the contract is

such that executing the contract cannot be postponed for the duration of the Market Court pro-ceedings

Temporary contract arrangements must not hinder the execution of the following items by means of a decision of the Market Court

1) the decision of the contracting authorityentity to cancel the contract in full or in part

2) prohibit the contracting authorityentity from applying any erroneous item included in the contract document or otherwise complying with an incorrect procedure or

3) require the contracting authorityentity to rectify its incorrect procedure

Section 96

Sanctions imposed by the Market Court

If during the contract procedure actions have been taken which are against this Act or the provisions based thereon or against European Union legislation the Market Court may

1) cancel the decision of the contracting authorityentity in full or in part

2) prohibit the contracting authorityentity from applying any erroneous item included in the contract document or otherwise complying with an incorrect procedure

3) require the contracting authorityentity to correct its erroneous procedure

4) order the contracting authorityentity to pay a compensatory fee to the party which would

have had a genuine chance to win the bidding competition had the procedure been correct

5) impose an ineffectiveness sanction on the contracting authorityentity

6) order the contracting authorityentity to pay an infringement fine to the state

7) reduce the contract term to end after a period of time specified by the Market Court has

passed

The provisions of Sections 97ndash100 shall apply to determining the sanctions mentioned in sub-

section 1 points 4ndash7 above When determining these sanctions the Market Court may consid-

er the contract to have been concluded on the basis of specific circumstances provided that

the contracting authorityentity has especially commenced the implementation of the contract

The ineffectiveness sanctions infringement fine and reduction of contract terms may only be

issued in contracts exceeding the EU thresholds referred to in Section 12 However an ineffec-tiveness sanction cannot be imposed in a service contract in accordance with Annex B

Only a compensatory fee can be imposed in a contract referred to in Section 68(2) of this Act

40

Section 97

Compensation

Provision for compensation may be made if the harm caused to the contracting authori-

tyentity rights of third parties state security and the public interest by the measure defined

in Section 96(1)(1ndash3) is considered to outweigh the benefits or if the petition has been initiat-

ed following the conclusion of the contract With respect to setting the amount of the compen-

satory fee account shall be taken of the nature of the infringement or omission by the con-

tracting authorityentity the value of the contract in question and the costs and damages in-

curred by the petitioner The Market Court may however decide not to prove for compensa-

tion if the contracting authorityentity has refrained from implementing the contract during the proceedings in the Market Court

Without a specific reason the amount of compensation shall not exceed 10 percent of the val-

ue of the contract

Section 98

Ineffectiveness

The Market Court may declare a contract ineffective if

1) the contracting authorityentity has made a direct award of contract without the basis re-ferred to in this Act and the procedures referred to in Section 81

2) the contracting authorityentity has concluded the contract although there is an obligation in the contract to observe a standstill period

3) the contracting authorityentity has concluded the contract contrary to Section 92 although

the procurement case has been submitted to the Market Court for a decision

In addition a requirement in the situation referred to in subsection 1 points 2 and 3 above is

that the contracting authorityentity has made another infringement contrary to this Act which has affected the chances of the appellant to win the contract

If the contracting authorityentity has concluded the contract in a competition based on the

framework agreement on the basis of Section 80 without observing the standstill period and if

a breach has been committed in the competition in respect of Section 27(2 or 3) such that this

has affected the chances of the appellant to win the contract the Market Court may declare the contract ineffective

The Market Court shall decide to which contractual obligations ineffectiveness shall apply Inef-

fectiveness shall apply only to unfulfilled contractual obligations

Section 99

Non-imposition of ineffectiveness

In the situations referred to in Section 98 above the Market Court may decide not to impose

ineffectiveness for compelling reasons related to the public interest or state security Economic

interests which are directly related to the contract may be deemed compelling only if ineffec-tiveness of the contract would exceptionally have inequitable consequences

The Market Court may not impose ineffectiveness if it would result in serious endangerment of

the implementation of a defence and security project essentially important with respect to

state security

Section 100

41

Infringement fines and reduction of the contract term

The Market Court may order a contracting authorityentity to pay the state an infringement

fine if

1) the Market Court has declared the contract ineffective

2) the contracting authorityentity has concluded the contract although there is an obligation in the contract to observe a standstill period

3) the contracting authorityentity has concluded the contract contrary to Section 92 although the procurement case has been submitted to the Market Court for a decision or

4) the Market Court has decided not to declare the contract ineffective for compelling reasons related to the public interest or state security in accordance with Section 99

In the situation referred to in subsection 1 point 4 above the Market Court may in addition to

or instead of imposing a sanction reduce the contract term so that it ends after a period of time specified by the Court

The Market Court may order a contracting authorityentity to pay the state an infringement

fine or reduce the contract term so that it ends after a period of time specified by the Court

this applies to service contracts referred to in Annex B of this Act the value of which exceeds

the EU threshold as defined in Section 12 if the contracting authorityentity

1) has made a direct award of contract without the basis referred to in this Act and the proce-dures referred to in Section 81 not having been complied with in the direct award

2) has concluded the contract although there is an obligation in the contract to observe the standstill period

3) has concluded the contract contrary to Section 92 although the procurement case has been submitted to the Market Court for a decision or

4) has concluded the contract in a competition based on a framework agreement on the basis

of Section 80 without observing the standstill period and if a breach has been committed in the

competition in respect of Section 27(2 or 3) such that this has affected the chances of the ap-pellant to win the contract

In addition a requirement in the situation referred to in subsection 3 points 2 and 3 above is

that the contracting authorityentity has made another infringement contrary to this Act which

has affected the chances of the appellant to win the contract

With respect to issuing a sanction the Market Court shall take into account the nature of the

mistake or omission by the contracting authorityentity and the value of the contract in ques-

tion The sanction shall not exceed 10 percent of the value of the contract

Section 101

Allocation of sanctions and cumulative effect

If one contracting authorityentity has been responsible for the contracting procedure on be-

half of the other contracting authorities the obligation to compensate for legal costs can be

placed on the contracting authorityentity that acted on behalf of the other contracting authori-

ties

With respect to the sanctions referred to in this Act the Market Court shall take into considera-

tion that the cumulative effect may not become unreasonable for the contracting authori-

tyentity or its contracting party

42

Section 102

Conditional fine

The Market Court may impose a conditional fine in order to underline the importance of com-

plying with the prohibitions or obligations referred to in this Act The provisions of the Act on

Conditional Fines (11131990) shall apply to the imposing of and sentencing to the payment of

conditional fines

If one contracting authorityentity has been responsible for the contracting procedure on be-

half of the other contracting authorities the obligation to compensate for costs can be placed

on the contracting authorityentity that acted on behalf of the other contracting authorities

Section 103

Notification of the Market Courts ruling

The ruling of the Market Court along with the instructions for appeal shall be verifiably notified under the provisions of the Administrative Judicial Procedure Act

With the consent of the appellant and the contracting authorityentity the Market Courts deci-

sion together with the instructions for appeal may be publicised using the electronic contact

information the aforementioned parties have provided to the Market Court

When electronic contact information is used the appellant and the contracting authorityentity

shall be deemed to have been notified of the decision and instructions for appeal on the date

on which the message concerning the matter is available in the recipientsrsquo reception equipment

so that the message can be handled The provisions of Section 77(1) shall apply to electronic

notification

Section 104

Prohibition to appeal

A case that is within the jurisdiction of the Market Court cannot be appealed against under the

provisions of the Local Government Act or the Administrative Judicial Procedure Act

A decision or ruling concerning a contract which has been excluded from the scope of applica-

tion of this Act on the basis of Section 6(2) and Sections 78 or 13 may not be appealed under

the Administrative Judicial Procedure Act or the Local Government Act The subcontractor may

not under the Administrative Judicial Procedure Act or the Local Government Act appeal the

decision or action taken by the contracting authorityentity concerning the subcontract

Section 105

Appeals against the decisions of the Market Court

Appeals against a ruling of the Market Court can be lodged in the Supreme Administrative Court in accordance with the Administrative Judicial Procedure Act

As referred to in Section 93(1) an appeal cannot be lodged against the ruling by the Market

Court in the Supreme Administrative Court A ruling by the Market Court does not prevent the

case from being reconsidered by the Market Court if the grounds for the previous ruling have

changed

If the Market Court has ruled that it will not grant the processing authorisation referred to in

Section 88(3) then an appeal against this ruling can only be lodged if the Supreme Adminis-

trative Court grants a leave to appeal

43

Section 106

Application of the Administrative Judicial Procedure Act

The Administrative Judicial Procedure Act shall apply to appeals unless otherwise provided by this Act

Section 107

Implementation of rulings

A ruling of the Market Court has to be observed notwithstanding any appeal unless the Su-

preme Administrative Court orders otherwise The ruling of the Market Court issuing the sanc-

tion referred to in Section 96(1)(4ndash7) may only be implemented on the basis of a final ruling

The implementation of a ruling concerning a sanction shall be supervised by the Legal Register

Centre The Legal Register Centre must be informed of any ruling by the Market Court and

Supreme Administrative Court to issue a sanction

Section 108

Compensation for damages

Those who cause damage to a candidate tenderer or supplier shall be liable to pay compensa-

tion for the damage they have caused while acting in breach of this Act or any regulations based thereon or the European Union law

However when the claim for damages refers to costs incurred as a result of the tendering pro-

cedure the candidate or tenderer is entitled to compensation if it can provide proof of the in-

correct procedure as defined in subsection 1 and that had the procedure been correct it would have had a genuine chance to win the contract

In respect of the cases defined in subsection 1 and 2 a Court of first instance shall be the

competent court in accordance with Chapter 10 of the Code of Judicial Procedure

Chapter 16

Further provisions

Section 109

Disclosure of information

Notwithstanding the provisions concerning confidentiality provided for in the Act on the Open-

ness of Government Activities or in any other act the contracting authorityentity shall supply

statistics and other information concerning the different stages of the contract and performed

contracts to the Finnish authorities and European Union bodies to monitor contracts and ex-

change information on the scale and to the time limit required by European Union law Pursu-

ant to this Act the Ministry of Economic Affairs and Employment has the right to forward in-

formation it has received to the European Union authorities notwithstanding the regulations on confidentiality

The contracting authorityentity shall draw up a written report on each contract and framework

agreement which includes essential information on the contract contract procedure and the

candidates and tenderers who participated as well as on the decisions made in connection with

44

the contract The report and its main content shall be forwarded on request to the European

Commission A separate report is not required if corresponding information can be found in the

contract decision or other documents

To document the course of the realised contract procedure the contracting authorityentity

shall implement necessary measures in an electronic format

More specific rules are laid down in a Government decree on the obligation to provide statistics

and the responsibility of the contracting authorityentity to draw up reports on contract proce-

dures and contract decisions as referred to in subsection 1 which are to be forwarded to the

European Union bodies

Section 110

Entry into force and transitional provisions

This Act enters into force on 1 January 2012

If a contract procedure is started before the entry into force of this Act the provisions that

were in force at the time when this Act entered into force shall be applied The contract proce-

dure shall be deemed to have commenced when the contract notice was published A contract

which does not require the publication of the contract notice shall be deemed to have com-

menced when the invitation to tender or a meeting is sent or negotiations with suppliers begin

Measures necessary for the implementation of this Act may be undertaken before the Actrsquos

entry into force

45

ANNEX A

Primary services

Group No

Matter CPV Reference No

1 Maintenance and repair services 50000000-5 50100000-6-50884000-4 (except 50310000-1-50324200-4 and 50116510-9 50190000-3 50229000-6 50243000-0) and 51000000-9-51900000-1

2 Services related to international military assistance

75211300-1

3 Defence services military defence services and civil defence services

75220000-4 75221000-1 75222000-8

4 Investigation and security services 79700000-1-79720000-7

5 Land transport services 60000000-8 60100000-9-60183000-4 (except 60160000-7 60161000-4) and 64120000-3-64121200-2

6 Air transport services for passengers and freight except transport of mail

60400000-2 60410000-5-60424120-3 (except 60411000-2 60421000-5) 60440000-4-60445000-9 and 60500000-3

7 Transport of mail by land and by air 60160000-7 60161000-4 60411000-2 60421000-5

8 Railway transport services 60200000-0-60220000-6

9 Sea transport services 60600000-4-60653000-0 and 63727000-1-63727200-3

10 Support and auxiliary transport services 63100000-0-63111000-0 63120000-6-63121100-4 63122000-0 63512000-1 and 63520000-0-6370000-6

11 Telecommunications services 64200000-8-64228200-2 72318000-7 and 72700000-7-72720000-3

12 Financial services insurance services 66500000-5-66720000-3

13 Data-processing and related services 50310000-1-50324200-4 72000000-5-72920000-5 (except 72318000-7 and 72700000-7-72720000-3) 79342410-4 9342410-4

14 Research and development services(sup1) and evaluation tests

73000000-2-73436000-7

15 Accounting auditing and bookkeeping services

79210000-9-79212500-8

16 Management consulting(sup2) and related services

73200000-4-73220000-0 79400000-8-79421200-3 and 79342000-3 79342100-4 79342300-6 79342320-2 79342321-9 79910000-6 79991000-7 98362000-8

17 Architectural services engineering services and integrated engineering services urban planning and landscape architectural services related scientific and technical consulting services technical testing and analysis services

71000000-8-71900000-7(except 71550000-8) and 79994000-8

18 Building cleaning services and building and property management services

70300000-4-70340000-0 and 90900000-6-90924000-3

19 Sewage and refuse disposal services 90400000-1 to 90743200-9 (except 90712200-3)

46

sanitation and similar services 90910000-9-90920000-2 and 50190000-3 50229000-6 50243000-0

20 Training and simulation services in the fields of defence and security

80330000-6 80600000-0 80610000-3 80620000-6 80630000-9 80640000-2 80650000-5 80660000-8

(sup1) Except the research and development services referred to in Section 13(2)(5) (sup2) Except arbitration and conciliation services ANNEX B Secondary services

Group No

Matter CPV Reference No

21 Hotel and restaurant services 55100000-1-55524000-9 and 98340000-8-98341100-6

22 Support and auxiliary transport services 63000000-9-63734000-3 (except 63711200-8 63712700-0 63712710-3) 6372700-1-63727200-3 and 98361000-1

23 Legal services 79100000-5-79140000-7

24 Employment and personnel recruitment services(sup1)

79600000-0-79635000-4 (except 79611000-0 79632000-3 79633000-0) and 98500000-8-98514000-9

25 Health and social services 79611000-085000000-9 and -85323000-9 (except 85321000-5 and 85322000-2)

26 Other services

(sup1) Except employment contracts

47

ANNEX C NACEsup1ordm

Main category F CONSTRUCTION CPV code

2-digit level

3-digit level

4-digit level

Description Comments

45 Construction This two-digit level includes the following construction of new buildings and works reconstruction and common repairs

45000000

451 Site preparation

45100000

4511 Demolition and wreck-ing of buildings earth moving

This four-digit level includes the following - demolition of buildings and other structures - clearing of building sites and earth moving site excavation landfill and levelling trench dig-ging quarrying blasting etc - site preparation for mining

- overburden removal and other development and prepa-ration of mines and mining sites

This four-digit level also includes - building site underdrainage - drainage of agricultural or forestry land

45110000

4512 Test drilling This four-digit level includes the following - test drilling test boring and sampling for construction geophysical geological or similar purposes This four-digit level excludes the following - drilling of oil or gas wells comp 1120 - water well drilling 4525

45120000

sup1deg Council regulation (EEC) No 303790 (Official Journal of the European Union 293 24 October 1990 p 1) on the statistical classification of economic activities in the European Community issued on 9 October 1990 regulation as amended by Commission Regulation (EEC) No 76193 (Official Journal of the European Union L 83 3 April 1993 p 1) If there are differences of opinion between CPV and NACE NACE nomenclature shall apply

48

- shaft sinking comp 4525 - oil and gas field exploration geophysical geological and seismic surveying comp 7420

452 Building complete constructions or parts thereof

45200000

4521 Building work This four-digit level includes the following - Construction of all types of buildings - civil engineering and hydraulic engineering works - building of bridges including those for elevated highways metro tunnels - construction of long-distance pipelines communication cables and long-distance networks for power lines - construction of long-distance pipelines telecommunication ca-bles and municipal network power lines related installation work - on-site assembly and erection of pre-fabricated constructions This four-digit level excludes the following - services related to oil and gas extraction comp 1120 - erection of complete prefabricat-ed constructions from self-manufactured parts not of con-crete comp 20 26 28 - construction work other than buildings for stadiums swimming pools gymnasiums tennis courts golf courses and other sports installations comp 4523 building installation comp 453 - building completion comp 454 - architectural and engineering services comp 7420 - project management for construction comp 7420

45210000 Except 45213316 45220000 45231000 45232000

4522 Erection and covering of roofs

This four-digit level includes the following - erection of roofs - roof covering - waterproofing

45261000

49

4523 Construction of highways streets airports and sports equipment

This four-digit level includes the following - construction of highways streets other vehicular and pedestrian ways - construction of railways - construction of airfield runways - construction work other than build-ings for stadiums swimming pools gymnasiums tennis courts golf courses and other sports installations - painting of markings on road surfaces and car parks This four-digit level excludes the following - preliminary earth moving comp 4511

45212212 and DA03 45230000 except 45231000 45232000 45234115

4524 Construction of water projects

This four-digit level includes the following building works - construction of waterways harbour and river works marinas locks etc - construction of dams and breakwaters - dredging - subsurface work

45240000

4525 Other construction work

This four-digit level includes the following - construction activities specialising in one aspect common to different kinds of structures requiring specialised skill or equipment - construction of foundations including pile driving - water well drilling and construction shaft sinking - erection of non-self-manufactured steel frame elements - steel bending - bricklaying and stone setting - erecting and dismantling of scaffolds and work platforms including rental of scaffolds and work platforms - erection of chimneys and industrial ovens This four-digit level excludes the following - rental of scaffolds without erecting and dismantling comp 7132

45250000 45262000

453 Building installation 45300000

4531 Installation of electri-cal wiring and fittings

This four-digit level includes the installation in buildings or other

45213316 45310000

50

construction projects of - electrical wiring and fittings - telecommunications systems - electrical heating systems - residential antennas - fire alarms - burglar alarm systems - lifts and escalators - lightning conductors etc

Except 45316000

4532 Insulation work This four-digit level includes the following - installation in buildings or other construction projects of thermal sound or vibration insulation This four-digit level excludes the following - waterproofing comp 4522

45320000

4533 Plumbing This four-digit level includes the installation in buildings or other construction projects of the following - plumbing and sanitary equipment and fittings - gas fittings - heating ventilation refrigeration or air-conditioning equipment and ducts - sprinkler systems This four-digit level excludes the following - installation of electrical heating systems comp 4531

45330000

4534 Other installation work

This four-digit level includes the fol-lowing - installation or other construction of illumination and signalling systems for roads railways airports and harbours - installation in buildings or other construction projects of fittings and fixtures

45234115 45316000 45340000

454 Building completion 45400000

4541 Plastering This four-digit level includes the following - application in building or other construction projects of interior and exterior plaster or stucco and other similar lathing materials

45410000

4542 Joinery installation This four-digit level includes the following - installation of non-self-manufactured doors windows door

45420000

51

and window frames fitted kitchens staircases and shop fittings made of wood or other materials - completion of interiors such as ceilings wooden wall coverings wall paneling installation of movable partitions etc This four-digit level excludes the following - laying of parquet and other wooden floor coverings comp 4543

52

4543 Floor covering and wall upholstery

This four-digit level includes the following - covering or tiling of buildings or other structures using - ceramic concrete or stone wall or floor tiles or stones - parquet or other wooden floor covering - wall-to-wall carpeting or linoleum also rubber or plastic floor covering - wall or floor covering made of mosaic marble granite or slate - wallpaper

45430000

4544 Painting and glazing This four-digit level includes the following - interior and exterior painting of buildings - exterior painting of other structures - installation of mirrors glass etc This four-digit level excludes the following - installation of windows comp 4542

45440000

4545 Other building completion

This four-digit level includes the following - construction of private swimming pools - cleaning the exterior surfaces of buildings using steam sandblasting or other similar method - other building completion work not classified elsewhere This four-digit level excludes the following - cleaning of buildings and other structures comp 7470

45212212 and DA03 45450000

455 Rental of construction or dismantling equip-ment with operators

45500000

4550 Rental of construction or dismantling equip-ment with operators

This four-digit level excludes the following - rental of construction or dismantling machines and equipment without operators comp 7132

45500000

19

1) certification or documentation demonstrating to the contract entitys satisfaction that the

tenderer will be capable of complying with the requirements concerning the export transfer

and transit of the products associated with the contract including any documentation applica-

ble thereto and received from one or more states

2) a notice from the tenderer concerning any restrictions on the assignment transfer or use of

the products or services or the results thereof arising from export control or information secu-

rity arrangements

3) certification or documentation demonstrating that the organisation and location of the ten-

derers supply chain will be capable of complying with the requirements concerning security of

supply stated in the contract notice or invitation to tender and a commitment to ensure that

any changes in the supply chain during the execution of the contract will not adversely affect

compliance with these requirements

4) a commitment from the tenderer to establish or maintain ndash in accordance with conditions to

be separately agreed ndash the capacity necessary to meet additional requirements as required by

the contracting authorityentity as a result of a crisis situation

5) any supplementary documentation received from the tenderers national authorities regard-

ing the fulfilment of the requirement under point 4

6) a commitment from the tenderer to carry out the maintenance modernisation or adaptation

of the products that are the object of the contract

7) a commitment from the tenderer to inform the contracting authorityentity in due time of

any changes in its organisation supply chain or strategy that may affect its obligations to the

contracting authorityentity

8) a commitment from the tenderer to deliver to the contracting authorityentity in accord-

ance with the agreed conditions all necessary special equipment needed for the production of

spare parts components assemblies and special testing equipment including technical draw-

ings licenses and instructions for use in the event that the tenderer is no longer able to pro-

vide these products

The tenderer may not be required to obtain a commitment from a European Union member

state that would restrict the right of that member state to apply ndash in accordance with relevant

international or European Union laws ndash the licensing criteria for its national export transfer or

transit of goods under the conditions prevailing at the time of such licensing decision

Section 43

Obligations relating to taxation environmental protection employment protection and provisions on working conditions

The contracting authorityentity may specify in the invitation to tender those authorities from

which the tenderer may obtain information on the obligations relating to taxation environmen-

tal protection employment protection working conditions or the provisions on working condi-

tions The contracting authorityentity shall request the tenderers to state that they have tak-en the aforementioned obligations into consideration when drawing up their tender

The provisions of subsection 1 do not affect the obligations to examine the tenders referred to in Section 58 that are exceptionally low in price

Section 44

Demonstration of compliance with tender requirements

The tenderer shall in its tender demonstrate that the product service or works contract it is

applying for meets the requirements set in the invitation to tender Tenders which do not meet

20

the requirements set in the tendering procedure or the invitation to tender shall be excluded

from the competitive bidding

If the contracting authorityentity has drawn up the technical specifications in accordance with

Section 37(2)(1) and the tenderer in its tender indicates ndash in a way which is satisfactory to

the contracting authorityentity ndash that the product service or work it offers meets the re-

quirements set by the contracting authorityentity the contracting authorityentity may not

reject the tender on grounds that the product service or work that complies with the tender

does not meet the technical specifications referred to by the contracting authorityentity As

proof the tenderer may use for example the manufacturers technical documentation or a

technical report issued by a recognised body located in Finland or in another European Union member state

If the contracting authorityentity has drawn up the technical specifications on the basis of the

requirements concerning performance capacity or functional characteristics it may not reject

the tender on grounds of the tender not meeting the requirements set provided that the prod-

uct service or work being offered complies with a nationally enforced European standard Eu-

ropean technical approval official technical definition international standard or technical refer-

ence and these technical specifications apply to the requirements set for the performance ca-

pacity or functional characteristics stated in the invitation to tender The tenderer must indi-

cate in its tender in a way satisfactory to the contracting authorityentity that the product

service or work that conforms to the standard fulfills the criteria set by the contracting authori-

tyentity for performance capacity and functional characteristics As proof the tenderer may

use for example the manufacturers technical documentation or a technical report issued by a recognised body located in Finland or in another European Union member state

Section 45

Communication

Notifications and exchanges of information relating to a public contract shall be submitted ei-

ther by mail telefax or by electronic means according to the choice of the contracting authori-

tyentity The means of communication chosen must be in common use and not restrict the

tenderers access to the tendering procedure

The electronic tools used for communicating information as well as their technical characteris-

tics must be non-discriminatory generally available and compatible with information and

communication technology products in general use The contracting authorityentity may re-

quire that electronic signatures in tenders and requests to participate meet the requirements

laid down in the Act on Strong Electronic Identification and Electronic Signatures (6172009)

Communication and the exchange and storage of information shall be carried out in such a way

as to ensure that the integrity of data and the confidentiality of the requests to participate and

tenders are preserved The contracting authorityentity shall ensure that the content of the

tenders and requests to participate is not revealed before the time-limit set for submitting

them The contracting authorityentity shall inform in the contract notice of possible require-

ments concerning information exchange

More specific provisions concerning the methods of communication and technical and other

requirements for electronic communication are laid down in a Government decree

Chapter 8

Selection of candidates and tenderers and selection of tenders

Section 46

Assessment of the suitability of candidates and tenderers

Exclusion from competitive bidding of candidates and tenderers assessment of the suitability

of candidates and tenderers and in line with Sections 47 to 56 the selection of tenderers shall

be carried out before the tenders are compared However a candidate or tenderer may be

excluded from participation in the competitive bidding in accordance with Section 47 or 48

21

even later during the competition when the contracting authorityentity has been made aware

of the criterion for exclusion

Section 47

Exclusion from the competition of candidates and tenderers convicted of certain of-fences

The contracting authorityentity shall make a decision to exclude a candidate or tenderer from

the competitive bidding if it has become aware that the candidate or tenderer or director or

any person having powers of representation decision or control has been the subject of a con-

viction by judgment that has obtained the force of res judicata and is specified in a criminal record for one or more of the reasons listed below

1) participation in the activities of a criminal organisation as defined in Chapter 17 Section 1 a of the Criminal Code of Finland (391889)

2) bribery as defined in Chapter 16 Section 13 aggravated bribery as defined in Chapter 16

Section 14 or bribery in business as defined in Chapter 30 Section 7 of the Criminal Code of

Finland

3) tax fraud as defined in Chapter 29 Section 1 or aggravated tax fraud as defined in Chapter

29 Section 2 subsidy fraud as defined in Chapter 29 Section 5 aggravated subsidy fraud as

defined in Chapter 29 Section 6 subsidy misuse as defined in Chapter 29 Section 7 of the Criminal Code of Finland

4) an offence committed with terrorist intent as defined in Chapter 34 a Section 1 of the Crim-

inal Code of Finland preparations for an offence to be committed with terrorist intent as de-

fined in Section 2 leading a terrorist group as defined in Section 3 advancing the activities of

a terrorist group as defined in Section 4 providing training for the purpose of committing a

terrorist offence as defined in Section 4 a recruitment for the purpose of committing a terror-

ist offence as defined in Section 4 b and instigation aiding and abetting or attempt to com-mit the offences mentioned above

5) money laundering as defined in Chapter 32 Section 6 aggravated money laundering as

defined in Section 7 or financing terrorism as defined in Chapter 34 a Section 5 of the Crimi-

nal Code of Finland or

6) work discrimination through undue influence as defined in Chapter 47 Section 3 a of the

Criminal Code

A candidate or tenderer convicted to pay a corporate fine referred to in Chapter 9 of the Crimi-nal Code shall also be excluded from the competitive bidding

The contracting authorityentity shall exclude a candidate or tenderer from the competitive

bidding if the candidate or tenderer has been the subject of a conviction by judgment that has

the force of res judicata in another state for reasons analogous to those mentioned in subsec-

tion 1 In a European Union member state the provisions shall apply to the following crimes defined in European Union Law

1) participation in a criminal organisation as defined in Article 2(1) of the Council Joint Action

98773JHA on making it a criminal offence to participate in a criminal organisation in the

member states of the European Union

2) corruption as defined in Article 3 of the Council Act of 26 May 1997 drawing up on the ba-

sis of Article K3(2)(c) of the Treaty on European Union the Convention on the fight against

corruption involving officials of the European Communities or officials of member states of the

European Union and Article 2(1)(a) of the Council Framework Decision 2003568JHA on com-

bating corruption in the private sector

3) fraud within the meaning of Article 1 of the Convention relating to the protection of the fi-nancial interests of the European Communities

4) a terrorist offence as defined in Article 1 of the Council Framework Decision 2002475JHA

an offence associated with terrorist activities as defined in Article 3 or instigation aiding and abetting or attempt as defined in Article 4 and

22

5) money laundering as defined in Article 1 of Council Directive 91308EEC on prevention of

the use of the financial system for the purpose of money laundering or financing of terrorism

A derogation from the requirement to exclude from the participation in competitive bidding a

candidate or tenderer who has been the subject of a conviction for a reason referred to in this

Section may be provided for overriding requirements in the general interest or subject to the

condition that the convicted person no longer holds a responsible position in the undertaking submitting the tender

Section 48

Other criteria for exclusion

The contracting authorityentity may make the decision to exclude from participation in com-petitive bidding a candidate or tenderer which

1) is bankrupt or is being wound up or has ceased operations where it has entered into an

arrangement with creditors or a reorganisation plan or is in an analogous situation arising from a similar procedure under the law

2) is the subject of proceedings for declaration of bankruptcy for an order for compulsory

winding up or of proceedings for other procedures referred to in point 1

3) has been convicted by judgment that has the force of res judicata of any offence concerning hisher professional conduct such as breaching the obligations concerning export control

4) has been guilty of grave professional misconduct such as breaching its obligations concern-

ing information security and security of supply or a similar offence in association with a previ-ous contract which the contracting authorityentity can prove

5) whose reliability has been proven to be inadequate to the degree where a risk to national

security cannot be excluded

6) has not fulfilled obligations to pay taxes or social security contributions in Finland or in the

country in which it is established or

7) is guilty of serious misrepresentation in supplying the information to the contracting au-

thorityentity required to apply the provisions of this Chapter or has neglected to provide the required information

The provisions laid down in subsection 1 points 3 and 4 shall apply in cases where the person

guilty of a mistake or negligence is a director or any person having powers of representation

decision or control in respect of the candidate or tenderer The decision on the exclusion may

take account of other matters such as the seriousness of the offence or omission the connec-

tion with the object of the contract the time lapsed any other implications of the offence and

any remedial action taken by the person convicted of the offence or omission

Section 49

Verification of the criteria for exclusion

The contracting authorityentity may request that the candidates and tenderers and the com-

petent authorities of other European Union member states in accordance with the appropriate

regulations submit evidence and clarifications in order to verify whether the exclusion criterion referred to in Section 47 or 48 applies to the candidate or tenderer

As regards Section 47 and Section 48(1)(3) the contracting authorityentity shall accept as

evidence an extract from the criminal record issued by a competent authority in the country in

which the tenderer is established As regards Section 48(1)(2 6) a certificate issued by the competent authority shall also be accepted as evidence

Where the country in which the candidate or tenderer is established does not issue such ex-

tracts or documents they may be replaced by a declaration on oath or by a solemn declaration

under the law of the country in which the representative of the candidate or tenderer is estab-

lished

23

Section 50

Requirements and references relating to the suitability of candidates and tenderers

The contracting authorityentity may set requirements relating to the candidates or tenderers

financial and economic standing technical capacity professional ability information security

security of supply and requirements concerning quality and request that the candidates and tenderers submit the related reports

In order to verify the requirements and that the requirements are satisfied the references re-

quested shall be related to the candidates or tenderers ability to perform the contract and

they shall be in proportion to the subject matter purpose and scope of the contract Require-

ments and references shall be indicated in the contract notice Candidates or tenderers failing

to satisfy the minimum requirements set by the contracting authorityentity shall be excluded from participation in the competitive bidding

The contracting authorityentity shall indicate in the contract notice any objective and non-

discriminatory criteria and rules which it shall apply in restricted procedures negotiated pro-

cedures or in the competitive dialogue procedure to admit candidates or tenderers to the com-

petitive bidding or negotiations The contracting authorityentity shall state the minimum

number of candidates and where appropriate also the maximum number of candidates

The contracting authorityentity may invite candidates or tenderers to supplement or clarify

the references and other documents

Section 51

Register data

The contracting authorityentity may request that the candidate or tenderer prove under the law of the country in which it is established that

1) it is registered in a professional or trade register

2) it carries out a trade by providing a declaration on oath or certificate and

3) it is entitled to provide a service in the country in which it is established by providing a li-cense or a certificate of membership of an organisation

Section 52

Economic and financial standing

The contracting authorityentity may request that a candidate or tenderer furnish proof of its financial and economic standing by references such as

1) a statement from a bank or credit institution or evidence of professional risk indemnity in-surance

2) a profit and loss account balance sheet annual report financial statements and group fi-

nancial statements if these must be published in the country in which the candidate or ten-

derer is established and

3) a statement of the undertakings overall turnover and turnover in the area that is the object

of the contract for a maximum of the three most recent fiscal periods if information on these turnovers is available

If for any valid reason the candidate or tenderer is unable to provide the documents request-

ed by the contracting authorityentity it may demonstrate its economic and financial standing

by any other document which the contracting authorityentity considers appropriate

24

Section 53

Technical capacity and professional ability

The contracting authorityentity may request that the candidate or tenderer furnish proof of its

technical capacity and professional ability by the following documents

1) the educational and professional qualifications of the candidate or tenderer or those of the

management of the undertaking and in particular those of the persons responsible for man-

aging the work or providing services or products that involve siting or installation functions or services

2) a list of the works carried out over a period not exceeding the past five years accompanied

by a certificate of satisfactory execution of the most important works the certificate shall indi-

cate the value date and site of the works and shall specify whether they were carried out ac-

cording to the rules of the trade and properly completed where appropriate a competent au-thority shall submit these certificates to the contracting authorityentity directly

3) a list of the principal deliveries carried out or the main services provided over a period not

exceeding the past five years with the sums dates and recipients involved where the recipi-

ent was a public body the list shall be verified by the competent authority where the recipient

was a private purchaser by the purchasers certification or failing this by a declaration of the

candidate or tenderer

4) an indication of the technical experts or bodies involved whether or not they belong directly

to the candidate or tenderer especially those responsible for quality control and in the case of

public works contracts those experts and bodies upon whom the contractor can call in order to carry out the work

5) the candidates or tenderers description of the tools equipment and actions by which it

ensures quality as well as the research and testing equipment required to implement the con-tract and the internal rules regarding industrial property and copyrights

6) a certificate for the inspection carried out by the candidate or tenderer or on its behalf by a

competent official body of the country in which the candidate or tenderer is established regard-

ing the candidatersquos or tendererrsquos production capacities technical capacity research or trial sys-

tems or quality control measures which it will implement

7) a statement of the average annual manpower of the service provider or contractor and the number of managerial staff for the last three years as a maximum

8) a statement of the tools fixtures technical equipment number of personnel know-how and

sources available to the service provider or tenderer for carrying out the contract for fulfilling

the additional needs that may arise from any crisis that the contracting authorityentity may

undergo or for the maintenance modernisation or adaptation of the products that are the ob-

ject of the contract in addition information on the geographic location of the tools fixtures

technical equipment number of personnel know-how and sources in the event that these are located outside of the European Union

9) with regard to the products to be supplied samples descriptions and photographs the au-

thenticity of which must be certified if the contracting authorityentity so requests and certifi-

cates drawn up by an official quality control institute or agencies of recognised competence

attesting to the conformity of the products to be supplied with technical specifications or standards and

10) with regard to public contracts having as their object supplies requiring a service or siting

or installation work an indication of professional ability efficiency experience and reliability

If appropriate to the object of the contract the contracting authorityentity may request that

the candidate or tenderer provide an indication of the environmental management measures to

be applied when performing a public works or service contract Should the contracting authori-

tyentity require the production of certificates drawn up by independent bodies attesting the

compliance of the tenderer with environmental management standards it shall refer to the

Community eco management and audit scheme (EMAS) or to the environmental management

standards based on relevant European or international standards certified by bodies conform-

25

ing to Community law or relevant European or international standards concerning certification

The contracting authorityentity shall accept equivalent certificates from bodies established in

other European Union member states and other evidence of equivalent environmental man-agement measures from the suppliers

If appropriate to the object of the contract the contracting authorityentity may request that

the candidate or tenderer provide an indication of the quality assurance measures Should the

contracting authorityentity require the production of certificates drawn up by independent

bodies attesting to the compliance of the tenderer with quality assurance standards the con-

tracting authorityentity shall refer to quality assurance systems based on relevant European

standards series certified by bodies conforming to the European standards series concerning

certification The contracting authorityentity shall accept equivalent certificates from bodies

established in other European Union member states and other evidence of equivalent quality assurance measures from the tenderers

If for any valid reason the candidate or tenderer is unable to provide the documents request-

ed by the contracting authorityentity it may demonstrate its economic and financial standing by any other document which the contracting authorityentity considers appropriate

Section 54

Requirements on information security set for candidates and tenderers

If classified documents are submitted drawn up or otherwise dealt with to carry out a call for

tender the contracting authorityentity may set requirements for candidates or tenderers to

meet the information security requirements laid down for authorities The contracting authori-

tyentity may request candidates or tenderers to provide commitments or information which

prove their capacity to meet the information security requirements

For candidates who have not obtained the certificate or commitment referred to in Section 1

the contracting authorityentity may grant additional time to obtain the certificate or commit-

ment In that case a deadline shall be set for the delivery of these In addition to the com-

mitments and information provided by the candidate the contracting authorityentity may render and consider any supplemental investigations it has conducted

Section 55

Legal form of the candidate and the tenderer and indication of the responsible per-sons

A candidate or tenderer which under the legislation of the country in which it is established is

entitled to provide the services that are the object of the contract may not be rejected solely

on the ground that under the legislation of the European Union member state in which the contract is awarded it would be required to be either a natural or legal person

In the case of public service and public works contracts as well as public supply contracts in-

volving siting and installation operations the contracting authorityentity may require candi-

dates and tenderers to indicate in the tender or the request to participate the names and pro-

fessional qualifications of the persons responsible for carrying out the services or the work in question

Section 56

Groups participating in the competitive bidding and reliance on the capacities of oth-er entities

Groups of suppliers may submit tenders or put themselves forward as candidates The con-

tracting authorityentity may not require these groups of candidates or tenderers to assume a

specific legal form in order to submit a tender or a request to participate However the group

may be required to do so during the term of the contract to the extent that this change is necessary for the satisfactory performance of the contract

26

A candidate or tenderer may rely on the capacities of other entities regardless of the legal na-

ture of the links it has with them to carry out the contract A group may rely on the abilities of

participants in the group or in other entities in order to perform the contract The candidate or

tenderer or a group thereof shall furnish the contracting authorityentity with proof that the

requirements relating to economic and financial standing technical capacity and professional

ability and other requirements are satisfied This proof may include contracts between compa-

nies or other binding documents demonstrating that the capacities to satisfy the requirements are accessible by the candidates or tenderers

Section 57

Selecting the tender

The contract awarded shall be either the economically most advantageous tender from the

point of view of the contracting authorityentity in accordance with the comparison criteria

linked to the object of the contract or the lowest in price When the award is made to the eco-

nomically most advantageous tender the criteria may include for example quality price

technical merit aesthetic and functional characteristics environmentally friendly characteris-

tics running costs costs associated with a long life cycle cost effectiveness after-sales ser-

vice and technical assistance delivery date delivery period and period of completion security of supply and interoperability and functional characteristics

The contracting authorityentity shall specify in the contract notice or the invitation to tender

documentation the comparison criteria and the relative weighting which it gives to each of the

criteria chosen to determine the economically most advantageous tender In the competitive

dialogue procedure the equivalent information shall be specified in the contract notice or the

project description The weighting may also be specified by indicating a reasonable range If it

is not reasonably possible to specify the relative weighting of the comparison criteria they

shall be specified in the order of importance

Section 58

Abnormally low tenders

The contracting authorityentity may reject tenders that are abnormally low in relation to the

quality and scope of the contract Before it may reject a tender the contracting authori-

tyentity shall request in writing a written report from the tenderer on the constituent ele-ments of the tender

The request referred to in subsection 1 may relate in particular to the economic and technical

solutions chosen for the manufacture of the goods supply of the service or execution of the

work exceptionally favourable conditions for the execution of the contract the originality of

the proposed solution employment protection at the place where the contract is executed and

compliance with the provisions relating to working conditions or the possibility of the tenderer

receiving state aid The contracting authorityentity shall verify the constituent elements of the tender taking into account the evidence supplied

The contracting authorityentity may reject a tender which is abnormally low in price because

the tenderer has obtained state aid illegally The tender can be rejected only after a sufficient

time limit has been fixed for the tenderer to prove that the state aid in question was granted

legally If the contracting authorityentity rejects the tender because of illegal state aid it shall report the matter to the European Commission

Section 59

Taking account of a subsidy awarded by the contracting authorityentity in the com-parison of tenders

If the tenderer is an entity belonging to the contracting authorityentitys organisation or if the

contracting authorityentity has granted or will grant the tenderer a financial subsidy which will

affect the price of the tender in the comparison of the tenders the contracting authorityentity

27

shall take into account the factors which will genuinely affect the price of the tender paid by

the contracting authorityentity such as the financial subsidy in question

Chapter 9 Subcontract agreements

Section 60

Subcontracts with related companies

The contracting authorityentity may request the tenderer to state in its tender which part of

the contract it plans to award as a subcontract to related companies and to list these compa-

nies The contracting authorityentity may also request tenderers submitting tenders as a

group as defined in Section 56 to indicate in their tender which part of the contract they plan

to award as a subcontract to their related companies and to list these companies If the rela-

tionships between the companies change during the procurement procedure the tenderer shall update the information included in its tender

A related company means a company which is under the direct or indirect control of the ten-

derer or which has direct or indirect control of the tenderer or which jointly with the tenderer

is under the control of another company on the basis of ownership financial contribution or the

regulations under which the company operates A company is considered to have control of

another company when it owns the majority of that companys unrestricted shareholder equity

controls the majority of the companys shareholders voting rights or may appoint half of the

members of the companys administrative managerial or supervisory body

The provisions of Sections 62-66 of this Act concerning subcontracting agreements are not

applicable to subcontracting agreements which the tenderer has entered into with a related

company or when the tender has been submitted by a group as defined in Section 56 to a

company belonging to the same group or a company which is a related company of a company

belonging to the group

Section 61

Selecting a subcontractor

The tenderer may select its subcontractors in all subcontracting agreements unless otherwise prescribed in Sections 62ndash66 of this Act

Section 62

Requirements concerning subcontracting agreements

The contracting authorityentity shall define the requirements for a subcontracting agreement

in the contract notice and further specify them in the invitation to tender In defining the re-

quirements for subcontracting agreements the principles of proportionality and non-discrimination must be complied with

The contracting authorityentity may require that the tenderer state in the tender which part

or parts of the contract it plans to subcontract to third parties the content of the subcontract-ing agreement and the chosen subcontractors shall also be stated

In addition to the provisions of subsection 2 the contracting authorityentity may require that

the tenderer selected as a contracting party shall

1) in accordance with the procedures laid down in Sections 64ndash66 of this Act invite bids on

part or all of the subcontracts included in the tender and stated in the notice in accordance with subsection 2 or

2) award the minimum amount of the contract value as defined by the contracting authori-

tyentity to third parties as subcontracts and invite bids on these subcontracts in accordance

with the procedures laid down in Sections 64ndash66 of this Act The contracting authorityentity

shall in that case define as percentages the minimum and maximum amount the tenderer shall

award to third parties as subcontracts and require that the tenderer state in its tender which

28

part or parts of the contract it plans to award to third parties as subcontracts in order to fulfil

the requirement of the contracting authorityentity The maximum amount defined by the con-tracting authorityentity shall not exceed 30 percent of the value of the contract or

3) invite bids on a part or parts of the subcontracts which it plans to award to third parties in

addition to the subcontracts mentioned in point 2 above In that case the contracting authori-

tyentity shall require that the tenderer specify in its tender those parts of the contract which it

plans to award as subcontracts to third parties in addition to the subcontracts mentioned in point 2 above

In addition to the provisions of subsections 2 and 3 the contracting authorityentity may re-

quire that the tenderer report any changes occurring at the subcontractor level during the im-

plementation of the contract

The contracting authorityentity shall set the maximum and minimum amount as defined in

subsection 3 point 2 having regard to the object and value of the contract and the character of the industry sector in question the competitive situation and technical capacity

The tenderer has the right to award more subcontracts to third parties than required by the contracting authorityentity in accordance with this Section

Section 63

Rejecting a subcontractor

The contracting authorityentity may specify requirements concerning the subcontractors fi-

nancial and economic situation technical capacity and professional competence information

security security of supply or quality These as well as other requirements concerning the

suitability of the subcontractor shall be stated in the contract notice These requirements shall

be equitable and non-discriminatory and conform to the requirements set in the invitation to tender concerning the suitability of the candidate or tenderer

The contracting authorityentity may decide to reject a subcontractor selected by the tenderer

during the contract procedure or the implementation of the contract if the subcontractor does

not meet the requirements set in the contract notice concerning the suitability of the subcon-

tractor or the exclusion criterion laid down in Section 47 or Section 48 applies to the subcon-

tractor The contracting authorityentity shall justify the rejection in writing to the tenderer

Section 64

Implementation of subcontracts

A tenderer selected as a contracting party shall act openly and treat any and all subcontractors

equally and in a non-discriminatory manner

A tenderer selected as a contracting party shall provide for the publication a subcontract notice

concerning those subcontracts to which the bidding obligation laid down in Section 62(3) ap-

plies and whose estimated value without value added tax exceeds the EU thresholds men-

tioned in Section 12 The notice obligation shall not apply to a subcontract which fulfills the

requirement set for a direct contract award mentioned in Sections 22ndash23 The provisions of

Sections 14ndash16 shall apply to the calculation of the estimated value of subcontracts

The tenderer selected as the contracting party shall specify in the subcontract notice the crite-

ria which the tenderer will apply in assessing the suitability of the subcontractors and in select-

ing them These criteria shall be equitable and non-discriminatory and conform to the criteria

that the contracting authorityentity applies in assessing the suitability of the tenderers The

requirements shall be related to the object of the subcontract and be proportional to the scope

of the subcontract

A tenderer selected as a contracting party may publish a subcontract notice also concerning

those subcontracts which meet the criteria for the subcontracts referred to in Sections 22ndash23

29

Section 65

Exemption from an obligation related to subcontracting

A tenderer selected as a contracting party may not be required to enter into a subcontract if it

indicates in a manner satisfactory to the contracting authorityentity that none of the subcon-

tractors that participated in the competition or none of their tenders fulfil the requirements

set in the subcontract notice and therefore the tenderer selected as a contracting party could

not fulfil the contract requirements

Section 66

Framework agreements

The provisions of Section 62 shall not apply to subcontracts awarded by the tenderer selected

as a contracting party if the framework agreement was put out to tender in accordance with

the provisions of Section 64

Subcontracts based on a framework agreement shall be awarded in accordance with the condi-

tions confirmed in the framework agreement and concluded between the original participants

to the framework agreement Conditions analogous to those of the framework agreement shall be complied with in subcontracting agreements

The framework agreement may not be used in such a way as to distort restrict or prevent

competition

The term of the framework agreement may not exceed seven years In exceptional cases the

framework agreement may be longer in duration when duly justified by the expected life cycle

of the supplies equipment and systems delivered and the technical problems that might re-

sult from the change of supplier

Section 67

The responsibility of the tenderer for carrying out the contract

The requirements set by the contracting authorityentity on the basis of this Chapter and the

notices issued by the tenderers based on them do not limit the responsibility of the tenderer

selected as a contracting party to carry out the contract PART III

National procedures

Chapter 10 Tendering procedures for contracts below the EU threshold for second-

ary service contracts referred to in Annex B and for certain other contracts

Section 68

Contract award procedures

The contract award procedures specified in this Chapter may be used for service contracts

public works contracts and the service contracts referred to in Annex A which are below the EU

threshold referred to in Section 12(1) but above the national threshold referred to in Section

13(1) and for secondary service contracts referred to in Annex B which are above the national

threshold referred to in Section 13(1)

The procedures laid down in this Chapter may also be used for defence contracts referred to in

Section 5 when the value of the defence contracts exceed the national threshold as referred to

in Section 13 provided that the criteria set in Article 346(1)(b) of TFEU are fulfilled

30

Section 69

General rules of procedure

The contracting authorityentity shall aim to take advantage of the prevailing competitive con-

ditions and award the contract primarily through competitive bidding A sufficient number of

tenders shall be requested in terms of the scope and subject matter of the contract to ensure

competition

A public notice shall be issued however the publication obligation does not apply in the case

of contracts that fulfil the criteria set in Article 346(1)(b) of TFEU

The contracting authorityentity may request a tender directly from one supplier if competitive

bidding cannot be carried out for reasons justified on the basis of national defence state secu-rity or security of supply

The contracting authorityentity may also request a tender directly from one supplier if

1) no tenders or no suitable tenders were received in the competitive bidding carried out

previously a further requirement is that the conditions of the original invitation to ten-

der are not fundamentally changed

2) for technical reasons or for reasons connected with the protection of exclusive rights the contract may be awarded only to a particular supplier

3) for reasons of urgency brought about by a crisis it is not possible to carry out competi-tive bidding

4) execution of the contract is absolutely necessary and competitive bidding cannot be

carried out for reasons of extreme urgency brought about by events unforeseeable by

and independent of the contracting authorityentity

5) the product to be acquired are manufactured purely for scientific or research purposes

and it is not a matter of establishing commercial viability of the products or to recover research and development costs

6) the object of the contract is a research and development service that has not been ex-cluded from the scope of this Act on the basis of Section 8

7) the contract is necessary in order to determine whether the final result of the research

and development service is suitable to be used as intended by the contracting authori-tyentity

8) the object of the contract consists of supplies quoted and purchased on a commodity market

9) the supplies are purchased on particularly advantageous terms from either a supplier

winding up its business activities or from the receivers of a bankruptcy or liquidators in

insolvency proceedings an arrangement with creditors or a similar procedure

10) the object of the contract is a second-hand product

11) the object of the contract is based on a supplementary contract right incorporated into

the contract

12) the object of the contract is additional deliveries by the original supplier which are in-

tended either as a partial replacement of existing supplies or installations or as the ex-

tension of existing supplies or installations and a change of supplier would result in in-

compatibility or disproportionate technical difficulties in operation and maintenance

13) the object of the contract is additional works or services not included in the project ini-

tially but which have through unforeseen circumstances become necessary for the per-

formance of the works or services as originally described

31

Section 70

Negotiations with tenderers and specifying the tender and the invitation to tender

The contracting authorityentity may discuss all aspects of the contract with the tenderers dur-

ing the negotiation provided that the negotiations do not result in changing constituent ele-

ments in the invitation to tender in a discriminating manner or in a manner which distorts

competition

The purpose of the negotiations shall be to select the best tender in accordance with Section

73(2) or to determine one or more alternative solutions for contract implementation before

sending the final invitation to tender The dialogue may take place in successive stages in or-

der to reduce the number of tenders or solutions to be discussed during the dialogue by apply-

ing the comparison criteria indicated in the invitation to tender or project description

In competitive bidding the requirement for negotiations shall be that the negotiations and the

criteria to be complied with during the negotiations have been stated in the invitation to tender

or the project description

The contracting authorityentity shall ensure equal treatment of all candidates and tenderers

during the negotiations and shall not provide information in a manner that may compromise

the equal treatment of the participants in competitive bidding

Section 71

Invitation to tender

The invitation to tender shall be submitted in writing and drawn up to be sufficiently clear in

order to enable submission of commensurate and mutually comparable tenders The invitation

to tender shall contain all information that is particularly important in terms of the contracting

procedure and submitting the tender

The invitation to tender shall include the award criterion and where the criterion for the award is that of the economically most advantageous tender the comparison criteria and the ranking thereof The invitation to tender shall indicate a reasonable time allotted for the tenderers to submit a tender taking into consideration the scope and subject matter of the contract

The contracting authorityentity may charge a reasonable fee for the invitation-to-tender doc-

uments to recover the costs arising from the exceptionally extensive scope of the documenta-

tion the materials related thereto or other similar factors

Section 72

Drawing up the invitation to tender and submitting the tender

The invitation to tender and the tenders based thereon shall be drawn up in writing They may be executed orally only in exceptional circumstances if the written procedure is justifiably not appropriate If the invitation to tender or the tenders are not drawn up in writing a record shall be kept of the negotiations held with the tenderers the record shall indicate the infor-mation impacting the course of the procedure and the position of the tenderers

Section 73

Selection of a tender and a tenderer rejecting a tender

The contracting authorityentity may exclude from the competitive bidding any supplier which

taking into consideration the scope and object of the contract and other criteria does not pos-

sess the qualifications to carry out the contract The contracting authorityentity may exclude

32

from the competitive bidding any tender submitted by a tenderer who does not possess the

qualifications to carry out the contract when taking into consideration the scope and object of

the contract and other criteria

The contracting authorityentity shall award the contract to the tenderer whose tender has the

lowest price or complies with the comparison criteria set in the invitation to tender and is eco-

nomically the most advantageous

The contracting authorityentity may reject a tender which does not fulfil the essential condi-

tions set in the invitation to tender or has an abnormally low price in terms of the subject mat-

ter and scope of the contract Before it may reject a tender the contracting authorityentity

shall request in writing details of the constituent elements of a tender that is abnormally low in

price

PART IV

General provisions on decisions concerning contract awards conclusion of contracts

procurement rectification public access to the contract documents and further provi-sions

Chapter 11

Decisions concerning the award of contracts and notification thereof

Section 74

Decision concerning the award

The contracting authorityentity shall provide in writing the decisions affecting the position of

the candidates and tenderers and the results of the tendering procedure including the grounds for the outcome of the procedure

The decision or the related documentation shall state the factors that fundamentally affected

the outcome including the grounds for rejecting the candidate tenderer or tender and the

grounds on which the accepted contracts were compared As regards a decision concerning

asking for bids for a contract based on a framework arrangement stating the facts showing

that the selection and award criteria have been applied as required under Section 27 shall

suffice If the standstill period referred to in Section 79 applies to the contract the decision or

the related documents shall also state the period of time after which the contract may be awarded

The contracting authorityentity is not required to make a decision referred to in this Section

concerning a contract for the additional supplies referred to in Section 23 or Section 69(4)(12)

and additional service or contract referred to in (13) or the temporary arrangements for a con-tract referred to in Section 95

In contracts based on framework agreements the contracting authorityentity is not required to make the decision referred to in this Section if

1) the contract is awarded in accordance with the conditions laid down in the framework

agreement without asking for bids or

2) the competitive bidding is based on a framework agreement when the value of the contract

does not exceed the EU threshold

33

Section 75

Suspending the contract award procedure

The contract award procedure can be suspended only for verifiable and justifiable reason

The provisions of Section 74 concerning contract ruling shall apply to the suspension of the

contract award procedure

Section 76

Appeal instructions and instructions for request for rectification

Instructions for appeal shall accompany the decisions made by the contracting authori-

tyentity explaining how to refer a case to the Market Court for consideration contact infor-

mation of the contracting authorityentity for the notice referred to in Section 90 and instruc-

tions for seeking rectification (petition instructions) explaining how the candidate or tenderer can have the case submitted for reconsideration through procurement rectification

With regard to the issuing and amending appeal and petition instructions the provisions of

Chapter 3 of the Administrative Judicial Procedure Act (5861996) shall apply in terms of ap-

peals and the provisions of Chapter 7 of the Administrative Procedure Act (4342003) shall

apply in terms of petition instructions

Section 77

Notification of the decision concerning the contract award

The decision of the contracting authorityentity including the grounds for the decision and the

appeal and petition instructions shall be submitted in writing to the parties concerned The de-

cision including the aforementioned documents shall be submitted using the electronic con-

tact information which the candidate or tenderer has given to the contracting authorityentity

When using the electronic contact information the candidate and tenderer shall be considered

to have received notice of the decision and the accompanying documents on the date on

which the electronic message containing the aforementioned documents is available in the re-

cipients reception equipment such that the message can be handled Such a point in time shall

mean the date on which the message was sent unless a reliable explanation concerning the

malfunction of telecommunications links or another analogous reason because of which the

electronic message reached the recipient later When electronic notification is used the con-

tracting authorityentity shall include in the message a separate note concerning the date

when the message was sent

The decision including the grounds for it and the appeal and petition instructions may also be

sent via regular mail under the Administrative Procedure Act Candidates and tenderers shall

be considered to have received notification of the decision and the accompanying documents

on the seventh day from the date on which they were sent unless the candidate or tenderer

proves that the notification occurred at a later date

Notification on the decision of the contracting authorityentity shall be issued without undue

delay at the latest 15 days from the date on which the contracting authorityentity receives a written request concerning notification on the decision that was made

34

Chapter 12

Public contract

Section 78

Concluding a public contract

Having made the decision to award a public contract the contracting authorityentity shall

conclude the contract The contract is concluded upon signing a written agreement

Section 79

Standstill period

In the case of a contract above the EU threshold referred to Section 12 above the contract can

be concluded at the earliest 21 days from the date when the candidate or tenderer received or is considered to have received the decision and instructions for appeal (standstill period)

A standstill period shall not be applied in direct contract awards

The provisions of Section 92 shall apply to the effect of an appeal on concluding a contract

Section 80

Exceptions to the compliance with the standstill period

The standstill period need not be upheld if

1) the contract concerns a procurement carried out on the basis of the framework agreement in accordance with Section 27

2) the contract is awarded to the tenderer who submitted the only acceptable tender and no

other tenderers or candidates remain in the competitive bidding whose position would be af-

fected by the selection of a co-contractor

3) the contract concerns a procurement referred to in Section 68(2)

Section 81

Notification of direct awards and conclusion of public contracts

In direct awards exceeding the EU threshold the contracting authorityentity may after hav-

ing made the award decision send a notice for publication concerning the direct award of con-

tract before concluding the contract In that case the contract can be concluded at the earli-est 14 days after the publication of the notice in the Official Journal of the European Union

Chapter 13

Procurement rectification

Section 82

Rectification of a procurement

The contracting authorityentity may remove an incorrect decision or annul an award decision

made during the contracting procedure concerning the legal status of the candidates or ten-

35

derers and make a new decision (procurement rectification) if the award decision or other deci-

sion reached during the contracting procedure is based on an error that occurred in the appli-cation of the law

Amending an award decision or other decision does not require the consent of the party con-

cerned However an award decision or other decision cannot be amended through procure-

ment rectification if the contract has been concluded

Section 83

Initiation of procurement rectification

The contracting authorityentity may take up a procurement rectification on its own initiative

or in response to a demand of the party in question The contracting authorityentity shall noti-fy the concerned parties immediately of the initiation of a procurement rectification

A subcontractor does not have the status of a concerned party referred to in subsection 1 of this section in terms of the matter concerning the contract

The concerned party shall present the demand within 14 days after receipt of the notification

of the award decision or other decision made by the contracting authorityentity during the

contracting procedure The contracting authorityentity itself may amend the award decision or

other decision no later than 60 days after the date the decision concerning the procurement rectification is made

Appealing the case to the Market Court does not prevent a procurement rectification or its pro-

cessing A procurement rectification may also apply to a decision of the contracting authori-

tyentity that has become legally binding if the case has not been submitted to the Market

Court for ruling

Section 84

Effect of the processing of procurement rectification on the proceedings in the Mar-ket Court

The initiation and processing of a procurement rectification do not affect the time limit within

which the concerned party has the right pursuant to this Act to submit an appeal against the

decision to the Market Court

If the award decision or other decision that was reached during the contract award procedure

is to be amended and has been appealed against before the Market Court the Market Court

shall be notified of the processing of the case through procurement rectification and informed

of the decision reached In processing a procurement rectification the contracting authori-

tyentity may prohibit the enforcement of the award decision or other decision or order it to be

suspended The Market Court shall be notified of a prohibition or suspension of enforcement if an appeal has been lodged against the decision in the Market Court

If the contracting authorityentity amends its award decision or other decision by means of a

procurement rectification such that as a result the appellant to the Market Court no longer has

the need for judicial relief or the need for a justified decision the Market Court may decline to

process such a case without giving a ruling on the principal claim

Section 85

The application of procurement rectification to other contracts

A procurement rectification can also be applied to amend an award decision or other decision

made by the contracting authorityentity during the contracting procedure to which this Act

36

shall not apply pursuant to Section 6(2) and Sections 7 8 or 13 A decision made on account

of such a contract rectification may not be appealed against in the Market Court or under the Administrative Judicial Procedure Act or Local Government (Act 3651995)

Chapter 14

Public access to the contract documents

Section 86

Application of the provisions concerning public access to the contract documents

The Act on the Openness of Government Activities (6211999) shall apply to public access to

the documents of the contracting authorityentity and the fees charged for the documents if

the contracting authorityentity is the authority referred to in Section 4 of the aforementioned

Act or if it is obliged to comply with that Act on the basis of a provision contained elsewhere in the Act

In terms of the right of parties other than the participants in the competitive bidding conducted

by the contracting authorityentity referred to in subsection 1 to have access to the docu-

ments drawn up and received for processing of the tender and the confidentiality obligation of

those employed by the contracting authorityentity the provisions of the Act on the Openness

of Government Activities shall apply to the right of concerned parties to have access to the

document to how public access to the document is determined and to the processing and resolving of the matter concerning access to information

The decision of the contracting authorityentity which has resolved the matter concerning ac-

cess to information can be appealed in accordance with the provisions of Section 33 of the Act

on the Openness of Government Activities The Supreme Administrative Court in whose judicial

district the contracting authorityentity is located is the competent Supreme Administrative

Court for considering the appeal submitted on the basis of a decision made by a party other

than the contracting authorityentity acting as an authority

Chapter 15

Appealing and the implications thereof

Section 87

Parties entitled to appeal

A concerned party may appeal the matter to the Market Court by issuing a complaint A sub-

contractor does not have the position of an interested party referred to in subsection 1 of this Section in terms of the matter concerning the contract

In matters concerning control procedures of the European Union the Ministry of Economic Af-

fairs and Employment may also refer the matter to the Market Court for consideration

Section 88

Object of the appeal

An appeal may be lodged before the Market Court against an award decision of the contracting

authorityentity referred to in this Act or other decision reached by the contracting authori-

tyentity during the contracting procedure which affects the status of the candidate or the ten-derer

37

An appeal may not be lodged before the Market Court against an award decision or other deci-

sion of the contracting authorityentity which concerns only the preparation of the contracting

procedure An appeal may not be lodged against a decision or other measure taken by the

supplier selected as a contracting party concerning a subcontracting agreement or an award

decision or determination made by the contracting authorityentity during the implementation of the contract

A contract based on a framework agreement referred to in Section 27 above and a contract

referred to in Section 68(2) may not be appealed unless a processing authorisation is issued by the Market Court The authorisation shall be issued if

1) the processing of the case is important in terms of applying the Act in other similar matters

or

2) there is a cogent reason for it related to the procedures of the contracting authorityentity

Section 89

Time period for appeal

Unless otherwise prescribed in this Section an appeal must be lodged in writing within 14 days

from the date when the candidate or tenderer received the notice concerning the contract with the instructions for appeal

If the contracting authorityentity has concluded a public contract after the contract decision

was issued on the basis of Section 80 point 1 without complying with the standstill period

the appeal shall be lodged within 30 days from the date when the tenderer has received notice

of the decision with the instructions for appeal

An appeal before the Market Court shall be lodged within six months of the date of the contract

decision provided that the candidate or tenderer has received notice of the contract decision

and the contract decision or appeal instructions were materially deficient or the appeal instruc-tions have been missing altogether

If the contracting authorityentity has with regard to a contract above the EU threshold re-

ferred to in Section 12 above delivered a notice regarding a direct award of contract for publi-

cation in the Official journal of the European Union the complaint must be lodged within 14 days from the publication of the notice

If the notice referred to in subsection 4 has not been published the appeal concerning a direct award of contract shall be lodged

1) within 30 days of the date of publication of a contract-award notice has been published in

the Official Journal of the European Union or

2) within six months from the conclusion of the contract at the latest

Section 90

Notification of appeal to the contracting authorityentity and the list of procurement

cases

The appellant in a contract-related matter must notify the contracting authorityentity in writ-ing of referring the case to the Market Court for consideration

The notification must be delivered to the contracting authorityentity at the latest when the

complaint concerning the contract is delivered to the Market Court The notification shall be delivered to the address provided by the contracting authorityentity

38

The Market Court shall maintain and publish a list which is as comprehensive and up-to-date

as possible of contract-related matters pending at the Market Court

Section 91

The contracting authorityentity as the opponent and compensation of legal costs

In the proceedings regarding contract-related matters the contracting authorityentity shall be considered the opponent of the party or agency lodging the appeal

The provisions of Section 74 subsections 1 and 2 of the Administrative Judicial Procedure Act shall apply to the compensation of legal costs regarding contract-related matters

The provisions of Section 74 subsections 1 and 2 of the administrative Judicial Procedure Act

concerning public authorities or other public parties shall apply to the decision concerning the

liability to provide compensation for the legal costs of the opponent If one contracting authori-

tyentity has been responsible for the contracting procedure on behalf of the other contracting

authorities the obligation regarding compensation of legal costs may be placed on the con-

tracting authorityentity which acted on behalf of the other contracting authorities

Section 92

The effect of the appeal on concluding the contract

In case of a contract where the standstill period or the time limit referred to in section 81 must

be observed the contracting authorityentity may not conclude the contract if the matter has

been brought up for consideration by the Market Court

If the Market Court decides a case concerning enforcement or decides on the principal claim

before the standstill period or the time limit referred to in Section 81 has expired the contract-

ing authorityentity shall observe the standstill period or the time limit referred to in Section

81 until the end of the period notwithstanding the ruling of the Market Court

Section 93

Interim decisions of the Market Court

While the appeal is under consideration the Market Court may prohibit suspend or allow the

implementation of the decision concerning the contract award or order the contracting proce-

dure to be suspended otherwise as an interim measure for the duration of the proceedings in the Market Court

When deciding on the measure referred to in subsection 1 the Market Court shall take into

consideration that the harm caused by the measure to the opponent the rights of third par-

ties the security of the state or the public interest may not outweigh its benefits

However the decision prescribed in subsection 1 of this Section cannot be carried out in the case of a contract referred to in Section 68(2) of this Act

A legally trained member of the Market Court may alone issue a ruling as an interim measure

Section 94

Interim commitment of the contracting authorityentity

While the appeal is under consideration the contracting authorityentity may provide a written

undertaking to the Market Court stating that it will not enforce the decision concerning the contract for as long as the matter is pending in the Market Court

39

If the contracting authorityentity provides the Market Court with the undertaking referred to

in subsection 1 the Market Court will not issue without a specific reason a decision on the

obligation to interim prohibition on implementing the decision to award the contract

Section 95

Temporary organisation of a contract

If an appeal has been lodged against a contract before the Market Court the contracting au-

thorityentity may temporarily organise the contract by ordering it from a supplier who partici-

pated in the contracting procedure or from a previous supplier if the nature of the contract is

such that executing the contract cannot be postponed for the duration of the Market Court pro-ceedings

Temporary contract arrangements must not hinder the execution of the following items by means of a decision of the Market Court

1) the decision of the contracting authorityentity to cancel the contract in full or in part

2) prohibit the contracting authorityentity from applying any erroneous item included in the contract document or otherwise complying with an incorrect procedure or

3) require the contracting authorityentity to rectify its incorrect procedure

Section 96

Sanctions imposed by the Market Court

If during the contract procedure actions have been taken which are against this Act or the provisions based thereon or against European Union legislation the Market Court may

1) cancel the decision of the contracting authorityentity in full or in part

2) prohibit the contracting authorityentity from applying any erroneous item included in the contract document or otherwise complying with an incorrect procedure

3) require the contracting authorityentity to correct its erroneous procedure

4) order the contracting authorityentity to pay a compensatory fee to the party which would

have had a genuine chance to win the bidding competition had the procedure been correct

5) impose an ineffectiveness sanction on the contracting authorityentity

6) order the contracting authorityentity to pay an infringement fine to the state

7) reduce the contract term to end after a period of time specified by the Market Court has

passed

The provisions of Sections 97ndash100 shall apply to determining the sanctions mentioned in sub-

section 1 points 4ndash7 above When determining these sanctions the Market Court may consid-

er the contract to have been concluded on the basis of specific circumstances provided that

the contracting authorityentity has especially commenced the implementation of the contract

The ineffectiveness sanctions infringement fine and reduction of contract terms may only be

issued in contracts exceeding the EU thresholds referred to in Section 12 However an ineffec-tiveness sanction cannot be imposed in a service contract in accordance with Annex B

Only a compensatory fee can be imposed in a contract referred to in Section 68(2) of this Act

40

Section 97

Compensation

Provision for compensation may be made if the harm caused to the contracting authori-

tyentity rights of third parties state security and the public interest by the measure defined

in Section 96(1)(1ndash3) is considered to outweigh the benefits or if the petition has been initiat-

ed following the conclusion of the contract With respect to setting the amount of the compen-

satory fee account shall be taken of the nature of the infringement or omission by the con-

tracting authorityentity the value of the contract in question and the costs and damages in-

curred by the petitioner The Market Court may however decide not to prove for compensa-

tion if the contracting authorityentity has refrained from implementing the contract during the proceedings in the Market Court

Without a specific reason the amount of compensation shall not exceed 10 percent of the val-

ue of the contract

Section 98

Ineffectiveness

The Market Court may declare a contract ineffective if

1) the contracting authorityentity has made a direct award of contract without the basis re-ferred to in this Act and the procedures referred to in Section 81

2) the contracting authorityentity has concluded the contract although there is an obligation in the contract to observe a standstill period

3) the contracting authorityentity has concluded the contract contrary to Section 92 although

the procurement case has been submitted to the Market Court for a decision

In addition a requirement in the situation referred to in subsection 1 points 2 and 3 above is

that the contracting authorityentity has made another infringement contrary to this Act which has affected the chances of the appellant to win the contract

If the contracting authorityentity has concluded the contract in a competition based on the

framework agreement on the basis of Section 80 without observing the standstill period and if

a breach has been committed in the competition in respect of Section 27(2 or 3) such that this

has affected the chances of the appellant to win the contract the Market Court may declare the contract ineffective

The Market Court shall decide to which contractual obligations ineffectiveness shall apply Inef-

fectiveness shall apply only to unfulfilled contractual obligations

Section 99

Non-imposition of ineffectiveness

In the situations referred to in Section 98 above the Market Court may decide not to impose

ineffectiveness for compelling reasons related to the public interest or state security Economic

interests which are directly related to the contract may be deemed compelling only if ineffec-tiveness of the contract would exceptionally have inequitable consequences

The Market Court may not impose ineffectiveness if it would result in serious endangerment of

the implementation of a defence and security project essentially important with respect to

state security

Section 100

41

Infringement fines and reduction of the contract term

The Market Court may order a contracting authorityentity to pay the state an infringement

fine if

1) the Market Court has declared the contract ineffective

2) the contracting authorityentity has concluded the contract although there is an obligation in the contract to observe a standstill period

3) the contracting authorityentity has concluded the contract contrary to Section 92 although the procurement case has been submitted to the Market Court for a decision or

4) the Market Court has decided not to declare the contract ineffective for compelling reasons related to the public interest or state security in accordance with Section 99

In the situation referred to in subsection 1 point 4 above the Market Court may in addition to

or instead of imposing a sanction reduce the contract term so that it ends after a period of time specified by the Court

The Market Court may order a contracting authorityentity to pay the state an infringement

fine or reduce the contract term so that it ends after a period of time specified by the Court

this applies to service contracts referred to in Annex B of this Act the value of which exceeds

the EU threshold as defined in Section 12 if the contracting authorityentity

1) has made a direct award of contract without the basis referred to in this Act and the proce-dures referred to in Section 81 not having been complied with in the direct award

2) has concluded the contract although there is an obligation in the contract to observe the standstill period

3) has concluded the contract contrary to Section 92 although the procurement case has been submitted to the Market Court for a decision or

4) has concluded the contract in a competition based on a framework agreement on the basis

of Section 80 without observing the standstill period and if a breach has been committed in the

competition in respect of Section 27(2 or 3) such that this has affected the chances of the ap-pellant to win the contract

In addition a requirement in the situation referred to in subsection 3 points 2 and 3 above is

that the contracting authorityentity has made another infringement contrary to this Act which

has affected the chances of the appellant to win the contract

With respect to issuing a sanction the Market Court shall take into account the nature of the

mistake or omission by the contracting authorityentity and the value of the contract in ques-

tion The sanction shall not exceed 10 percent of the value of the contract

Section 101

Allocation of sanctions and cumulative effect

If one contracting authorityentity has been responsible for the contracting procedure on be-

half of the other contracting authorities the obligation to compensate for legal costs can be

placed on the contracting authorityentity that acted on behalf of the other contracting authori-

ties

With respect to the sanctions referred to in this Act the Market Court shall take into considera-

tion that the cumulative effect may not become unreasonable for the contracting authori-

tyentity or its contracting party

42

Section 102

Conditional fine

The Market Court may impose a conditional fine in order to underline the importance of com-

plying with the prohibitions or obligations referred to in this Act The provisions of the Act on

Conditional Fines (11131990) shall apply to the imposing of and sentencing to the payment of

conditional fines

If one contracting authorityentity has been responsible for the contracting procedure on be-

half of the other contracting authorities the obligation to compensate for costs can be placed

on the contracting authorityentity that acted on behalf of the other contracting authorities

Section 103

Notification of the Market Courts ruling

The ruling of the Market Court along with the instructions for appeal shall be verifiably notified under the provisions of the Administrative Judicial Procedure Act

With the consent of the appellant and the contracting authorityentity the Market Courts deci-

sion together with the instructions for appeal may be publicised using the electronic contact

information the aforementioned parties have provided to the Market Court

When electronic contact information is used the appellant and the contracting authorityentity

shall be deemed to have been notified of the decision and instructions for appeal on the date

on which the message concerning the matter is available in the recipientsrsquo reception equipment

so that the message can be handled The provisions of Section 77(1) shall apply to electronic

notification

Section 104

Prohibition to appeal

A case that is within the jurisdiction of the Market Court cannot be appealed against under the

provisions of the Local Government Act or the Administrative Judicial Procedure Act

A decision or ruling concerning a contract which has been excluded from the scope of applica-

tion of this Act on the basis of Section 6(2) and Sections 78 or 13 may not be appealed under

the Administrative Judicial Procedure Act or the Local Government Act The subcontractor may

not under the Administrative Judicial Procedure Act or the Local Government Act appeal the

decision or action taken by the contracting authorityentity concerning the subcontract

Section 105

Appeals against the decisions of the Market Court

Appeals against a ruling of the Market Court can be lodged in the Supreme Administrative Court in accordance with the Administrative Judicial Procedure Act

As referred to in Section 93(1) an appeal cannot be lodged against the ruling by the Market

Court in the Supreme Administrative Court A ruling by the Market Court does not prevent the

case from being reconsidered by the Market Court if the grounds for the previous ruling have

changed

If the Market Court has ruled that it will not grant the processing authorisation referred to in

Section 88(3) then an appeal against this ruling can only be lodged if the Supreme Adminis-

trative Court grants a leave to appeal

43

Section 106

Application of the Administrative Judicial Procedure Act

The Administrative Judicial Procedure Act shall apply to appeals unless otherwise provided by this Act

Section 107

Implementation of rulings

A ruling of the Market Court has to be observed notwithstanding any appeal unless the Su-

preme Administrative Court orders otherwise The ruling of the Market Court issuing the sanc-

tion referred to in Section 96(1)(4ndash7) may only be implemented on the basis of a final ruling

The implementation of a ruling concerning a sanction shall be supervised by the Legal Register

Centre The Legal Register Centre must be informed of any ruling by the Market Court and

Supreme Administrative Court to issue a sanction

Section 108

Compensation for damages

Those who cause damage to a candidate tenderer or supplier shall be liable to pay compensa-

tion for the damage they have caused while acting in breach of this Act or any regulations based thereon or the European Union law

However when the claim for damages refers to costs incurred as a result of the tendering pro-

cedure the candidate or tenderer is entitled to compensation if it can provide proof of the in-

correct procedure as defined in subsection 1 and that had the procedure been correct it would have had a genuine chance to win the contract

In respect of the cases defined in subsection 1 and 2 a Court of first instance shall be the

competent court in accordance with Chapter 10 of the Code of Judicial Procedure

Chapter 16

Further provisions

Section 109

Disclosure of information

Notwithstanding the provisions concerning confidentiality provided for in the Act on the Open-

ness of Government Activities or in any other act the contracting authorityentity shall supply

statistics and other information concerning the different stages of the contract and performed

contracts to the Finnish authorities and European Union bodies to monitor contracts and ex-

change information on the scale and to the time limit required by European Union law Pursu-

ant to this Act the Ministry of Economic Affairs and Employment has the right to forward in-

formation it has received to the European Union authorities notwithstanding the regulations on confidentiality

The contracting authorityentity shall draw up a written report on each contract and framework

agreement which includes essential information on the contract contract procedure and the

candidates and tenderers who participated as well as on the decisions made in connection with

44

the contract The report and its main content shall be forwarded on request to the European

Commission A separate report is not required if corresponding information can be found in the

contract decision or other documents

To document the course of the realised contract procedure the contracting authorityentity

shall implement necessary measures in an electronic format

More specific rules are laid down in a Government decree on the obligation to provide statistics

and the responsibility of the contracting authorityentity to draw up reports on contract proce-

dures and contract decisions as referred to in subsection 1 which are to be forwarded to the

European Union bodies

Section 110

Entry into force and transitional provisions

This Act enters into force on 1 January 2012

If a contract procedure is started before the entry into force of this Act the provisions that

were in force at the time when this Act entered into force shall be applied The contract proce-

dure shall be deemed to have commenced when the contract notice was published A contract

which does not require the publication of the contract notice shall be deemed to have com-

menced when the invitation to tender or a meeting is sent or negotiations with suppliers begin

Measures necessary for the implementation of this Act may be undertaken before the Actrsquos

entry into force

45

ANNEX A

Primary services

Group No

Matter CPV Reference No

1 Maintenance and repair services 50000000-5 50100000-6-50884000-4 (except 50310000-1-50324200-4 and 50116510-9 50190000-3 50229000-6 50243000-0) and 51000000-9-51900000-1

2 Services related to international military assistance

75211300-1

3 Defence services military defence services and civil defence services

75220000-4 75221000-1 75222000-8

4 Investigation and security services 79700000-1-79720000-7

5 Land transport services 60000000-8 60100000-9-60183000-4 (except 60160000-7 60161000-4) and 64120000-3-64121200-2

6 Air transport services for passengers and freight except transport of mail

60400000-2 60410000-5-60424120-3 (except 60411000-2 60421000-5) 60440000-4-60445000-9 and 60500000-3

7 Transport of mail by land and by air 60160000-7 60161000-4 60411000-2 60421000-5

8 Railway transport services 60200000-0-60220000-6

9 Sea transport services 60600000-4-60653000-0 and 63727000-1-63727200-3

10 Support and auxiliary transport services 63100000-0-63111000-0 63120000-6-63121100-4 63122000-0 63512000-1 and 63520000-0-6370000-6

11 Telecommunications services 64200000-8-64228200-2 72318000-7 and 72700000-7-72720000-3

12 Financial services insurance services 66500000-5-66720000-3

13 Data-processing and related services 50310000-1-50324200-4 72000000-5-72920000-5 (except 72318000-7 and 72700000-7-72720000-3) 79342410-4 9342410-4

14 Research and development services(sup1) and evaluation tests

73000000-2-73436000-7

15 Accounting auditing and bookkeeping services

79210000-9-79212500-8

16 Management consulting(sup2) and related services

73200000-4-73220000-0 79400000-8-79421200-3 and 79342000-3 79342100-4 79342300-6 79342320-2 79342321-9 79910000-6 79991000-7 98362000-8

17 Architectural services engineering services and integrated engineering services urban planning and landscape architectural services related scientific and technical consulting services technical testing and analysis services

71000000-8-71900000-7(except 71550000-8) and 79994000-8

18 Building cleaning services and building and property management services

70300000-4-70340000-0 and 90900000-6-90924000-3

19 Sewage and refuse disposal services 90400000-1 to 90743200-9 (except 90712200-3)

46

sanitation and similar services 90910000-9-90920000-2 and 50190000-3 50229000-6 50243000-0

20 Training and simulation services in the fields of defence and security

80330000-6 80600000-0 80610000-3 80620000-6 80630000-9 80640000-2 80650000-5 80660000-8

(sup1) Except the research and development services referred to in Section 13(2)(5) (sup2) Except arbitration and conciliation services ANNEX B Secondary services

Group No

Matter CPV Reference No

21 Hotel and restaurant services 55100000-1-55524000-9 and 98340000-8-98341100-6

22 Support and auxiliary transport services 63000000-9-63734000-3 (except 63711200-8 63712700-0 63712710-3) 6372700-1-63727200-3 and 98361000-1

23 Legal services 79100000-5-79140000-7

24 Employment and personnel recruitment services(sup1)

79600000-0-79635000-4 (except 79611000-0 79632000-3 79633000-0) and 98500000-8-98514000-9

25 Health and social services 79611000-085000000-9 and -85323000-9 (except 85321000-5 and 85322000-2)

26 Other services

(sup1) Except employment contracts

47

ANNEX C NACEsup1ordm

Main category F CONSTRUCTION CPV code

2-digit level

3-digit level

4-digit level

Description Comments

45 Construction This two-digit level includes the following construction of new buildings and works reconstruction and common repairs

45000000

451 Site preparation

45100000

4511 Demolition and wreck-ing of buildings earth moving

This four-digit level includes the following - demolition of buildings and other structures - clearing of building sites and earth moving site excavation landfill and levelling trench dig-ging quarrying blasting etc - site preparation for mining

- overburden removal and other development and prepa-ration of mines and mining sites

This four-digit level also includes - building site underdrainage - drainage of agricultural or forestry land

45110000

4512 Test drilling This four-digit level includes the following - test drilling test boring and sampling for construction geophysical geological or similar purposes This four-digit level excludes the following - drilling of oil or gas wells comp 1120 - water well drilling 4525

45120000

sup1deg Council regulation (EEC) No 303790 (Official Journal of the European Union 293 24 October 1990 p 1) on the statistical classification of economic activities in the European Community issued on 9 October 1990 regulation as amended by Commission Regulation (EEC) No 76193 (Official Journal of the European Union L 83 3 April 1993 p 1) If there are differences of opinion between CPV and NACE NACE nomenclature shall apply

48

- shaft sinking comp 4525 - oil and gas field exploration geophysical geological and seismic surveying comp 7420

452 Building complete constructions or parts thereof

45200000

4521 Building work This four-digit level includes the following - Construction of all types of buildings - civil engineering and hydraulic engineering works - building of bridges including those for elevated highways metro tunnels - construction of long-distance pipelines communication cables and long-distance networks for power lines - construction of long-distance pipelines telecommunication ca-bles and municipal network power lines related installation work - on-site assembly and erection of pre-fabricated constructions This four-digit level excludes the following - services related to oil and gas extraction comp 1120 - erection of complete prefabricat-ed constructions from self-manufactured parts not of con-crete comp 20 26 28 - construction work other than buildings for stadiums swimming pools gymnasiums tennis courts golf courses and other sports installations comp 4523 building installation comp 453 - building completion comp 454 - architectural and engineering services comp 7420 - project management for construction comp 7420

45210000 Except 45213316 45220000 45231000 45232000

4522 Erection and covering of roofs

This four-digit level includes the following - erection of roofs - roof covering - waterproofing

45261000

49

4523 Construction of highways streets airports and sports equipment

This four-digit level includes the following - construction of highways streets other vehicular and pedestrian ways - construction of railways - construction of airfield runways - construction work other than build-ings for stadiums swimming pools gymnasiums tennis courts golf courses and other sports installations - painting of markings on road surfaces and car parks This four-digit level excludes the following - preliminary earth moving comp 4511

45212212 and DA03 45230000 except 45231000 45232000 45234115

4524 Construction of water projects

This four-digit level includes the following building works - construction of waterways harbour and river works marinas locks etc - construction of dams and breakwaters - dredging - subsurface work

45240000

4525 Other construction work

This four-digit level includes the following - construction activities specialising in one aspect common to different kinds of structures requiring specialised skill or equipment - construction of foundations including pile driving - water well drilling and construction shaft sinking - erection of non-self-manufactured steel frame elements - steel bending - bricklaying and stone setting - erecting and dismantling of scaffolds and work platforms including rental of scaffolds and work platforms - erection of chimneys and industrial ovens This four-digit level excludes the following - rental of scaffolds without erecting and dismantling comp 7132

45250000 45262000

453 Building installation 45300000

4531 Installation of electri-cal wiring and fittings

This four-digit level includes the installation in buildings or other

45213316 45310000

50

construction projects of - electrical wiring and fittings - telecommunications systems - electrical heating systems - residential antennas - fire alarms - burglar alarm systems - lifts and escalators - lightning conductors etc

Except 45316000

4532 Insulation work This four-digit level includes the following - installation in buildings or other construction projects of thermal sound or vibration insulation This four-digit level excludes the following - waterproofing comp 4522

45320000

4533 Plumbing This four-digit level includes the installation in buildings or other construction projects of the following - plumbing and sanitary equipment and fittings - gas fittings - heating ventilation refrigeration or air-conditioning equipment and ducts - sprinkler systems This four-digit level excludes the following - installation of electrical heating systems comp 4531

45330000

4534 Other installation work

This four-digit level includes the fol-lowing - installation or other construction of illumination and signalling systems for roads railways airports and harbours - installation in buildings or other construction projects of fittings and fixtures

45234115 45316000 45340000

454 Building completion 45400000

4541 Plastering This four-digit level includes the following - application in building or other construction projects of interior and exterior plaster or stucco and other similar lathing materials

45410000

4542 Joinery installation This four-digit level includes the following - installation of non-self-manufactured doors windows door

45420000

51

and window frames fitted kitchens staircases and shop fittings made of wood or other materials - completion of interiors such as ceilings wooden wall coverings wall paneling installation of movable partitions etc This four-digit level excludes the following - laying of parquet and other wooden floor coverings comp 4543

52

4543 Floor covering and wall upholstery

This four-digit level includes the following - covering or tiling of buildings or other structures using - ceramic concrete or stone wall or floor tiles or stones - parquet or other wooden floor covering - wall-to-wall carpeting or linoleum also rubber or plastic floor covering - wall or floor covering made of mosaic marble granite or slate - wallpaper

45430000

4544 Painting and glazing This four-digit level includes the following - interior and exterior painting of buildings - exterior painting of other structures - installation of mirrors glass etc This four-digit level excludes the following - installation of windows comp 4542

45440000

4545 Other building completion

This four-digit level includes the following - construction of private swimming pools - cleaning the exterior surfaces of buildings using steam sandblasting or other similar method - other building completion work not classified elsewhere This four-digit level excludes the following - cleaning of buildings and other structures comp 7470

45212212 and DA03 45450000

455 Rental of construction or dismantling equip-ment with operators

45500000

4550 Rental of construction or dismantling equip-ment with operators

This four-digit level excludes the following - rental of construction or dismantling machines and equipment without operators comp 7132

45500000

20

the requirements set in the tendering procedure or the invitation to tender shall be excluded

from the competitive bidding

If the contracting authorityentity has drawn up the technical specifications in accordance with

Section 37(2)(1) and the tenderer in its tender indicates ndash in a way which is satisfactory to

the contracting authorityentity ndash that the product service or work it offers meets the re-

quirements set by the contracting authorityentity the contracting authorityentity may not

reject the tender on grounds that the product service or work that complies with the tender

does not meet the technical specifications referred to by the contracting authorityentity As

proof the tenderer may use for example the manufacturers technical documentation or a

technical report issued by a recognised body located in Finland or in another European Union member state

If the contracting authorityentity has drawn up the technical specifications on the basis of the

requirements concerning performance capacity or functional characteristics it may not reject

the tender on grounds of the tender not meeting the requirements set provided that the prod-

uct service or work being offered complies with a nationally enforced European standard Eu-

ropean technical approval official technical definition international standard or technical refer-

ence and these technical specifications apply to the requirements set for the performance ca-

pacity or functional characteristics stated in the invitation to tender The tenderer must indi-

cate in its tender in a way satisfactory to the contracting authorityentity that the product

service or work that conforms to the standard fulfills the criteria set by the contracting authori-

tyentity for performance capacity and functional characteristics As proof the tenderer may

use for example the manufacturers technical documentation or a technical report issued by a recognised body located in Finland or in another European Union member state

Section 45

Communication

Notifications and exchanges of information relating to a public contract shall be submitted ei-

ther by mail telefax or by electronic means according to the choice of the contracting authori-

tyentity The means of communication chosen must be in common use and not restrict the

tenderers access to the tendering procedure

The electronic tools used for communicating information as well as their technical characteris-

tics must be non-discriminatory generally available and compatible with information and

communication technology products in general use The contracting authorityentity may re-

quire that electronic signatures in tenders and requests to participate meet the requirements

laid down in the Act on Strong Electronic Identification and Electronic Signatures (6172009)

Communication and the exchange and storage of information shall be carried out in such a way

as to ensure that the integrity of data and the confidentiality of the requests to participate and

tenders are preserved The contracting authorityentity shall ensure that the content of the

tenders and requests to participate is not revealed before the time-limit set for submitting

them The contracting authorityentity shall inform in the contract notice of possible require-

ments concerning information exchange

More specific provisions concerning the methods of communication and technical and other

requirements for electronic communication are laid down in a Government decree

Chapter 8

Selection of candidates and tenderers and selection of tenders

Section 46

Assessment of the suitability of candidates and tenderers

Exclusion from competitive bidding of candidates and tenderers assessment of the suitability

of candidates and tenderers and in line with Sections 47 to 56 the selection of tenderers shall

be carried out before the tenders are compared However a candidate or tenderer may be

excluded from participation in the competitive bidding in accordance with Section 47 or 48

21

even later during the competition when the contracting authorityentity has been made aware

of the criterion for exclusion

Section 47

Exclusion from the competition of candidates and tenderers convicted of certain of-fences

The contracting authorityentity shall make a decision to exclude a candidate or tenderer from

the competitive bidding if it has become aware that the candidate or tenderer or director or

any person having powers of representation decision or control has been the subject of a con-

viction by judgment that has obtained the force of res judicata and is specified in a criminal record for one or more of the reasons listed below

1) participation in the activities of a criminal organisation as defined in Chapter 17 Section 1 a of the Criminal Code of Finland (391889)

2) bribery as defined in Chapter 16 Section 13 aggravated bribery as defined in Chapter 16

Section 14 or bribery in business as defined in Chapter 30 Section 7 of the Criminal Code of

Finland

3) tax fraud as defined in Chapter 29 Section 1 or aggravated tax fraud as defined in Chapter

29 Section 2 subsidy fraud as defined in Chapter 29 Section 5 aggravated subsidy fraud as

defined in Chapter 29 Section 6 subsidy misuse as defined in Chapter 29 Section 7 of the Criminal Code of Finland

4) an offence committed with terrorist intent as defined in Chapter 34 a Section 1 of the Crim-

inal Code of Finland preparations for an offence to be committed with terrorist intent as de-

fined in Section 2 leading a terrorist group as defined in Section 3 advancing the activities of

a terrorist group as defined in Section 4 providing training for the purpose of committing a

terrorist offence as defined in Section 4 a recruitment for the purpose of committing a terror-

ist offence as defined in Section 4 b and instigation aiding and abetting or attempt to com-mit the offences mentioned above

5) money laundering as defined in Chapter 32 Section 6 aggravated money laundering as

defined in Section 7 or financing terrorism as defined in Chapter 34 a Section 5 of the Crimi-

nal Code of Finland or

6) work discrimination through undue influence as defined in Chapter 47 Section 3 a of the

Criminal Code

A candidate or tenderer convicted to pay a corporate fine referred to in Chapter 9 of the Crimi-nal Code shall also be excluded from the competitive bidding

The contracting authorityentity shall exclude a candidate or tenderer from the competitive

bidding if the candidate or tenderer has been the subject of a conviction by judgment that has

the force of res judicata in another state for reasons analogous to those mentioned in subsec-

tion 1 In a European Union member state the provisions shall apply to the following crimes defined in European Union Law

1) participation in a criminal organisation as defined in Article 2(1) of the Council Joint Action

98773JHA on making it a criminal offence to participate in a criminal organisation in the

member states of the European Union

2) corruption as defined in Article 3 of the Council Act of 26 May 1997 drawing up on the ba-

sis of Article K3(2)(c) of the Treaty on European Union the Convention on the fight against

corruption involving officials of the European Communities or officials of member states of the

European Union and Article 2(1)(a) of the Council Framework Decision 2003568JHA on com-

bating corruption in the private sector

3) fraud within the meaning of Article 1 of the Convention relating to the protection of the fi-nancial interests of the European Communities

4) a terrorist offence as defined in Article 1 of the Council Framework Decision 2002475JHA

an offence associated with terrorist activities as defined in Article 3 or instigation aiding and abetting or attempt as defined in Article 4 and

22

5) money laundering as defined in Article 1 of Council Directive 91308EEC on prevention of

the use of the financial system for the purpose of money laundering or financing of terrorism

A derogation from the requirement to exclude from the participation in competitive bidding a

candidate or tenderer who has been the subject of a conviction for a reason referred to in this

Section may be provided for overriding requirements in the general interest or subject to the

condition that the convicted person no longer holds a responsible position in the undertaking submitting the tender

Section 48

Other criteria for exclusion

The contracting authorityentity may make the decision to exclude from participation in com-petitive bidding a candidate or tenderer which

1) is bankrupt or is being wound up or has ceased operations where it has entered into an

arrangement with creditors or a reorganisation plan or is in an analogous situation arising from a similar procedure under the law

2) is the subject of proceedings for declaration of bankruptcy for an order for compulsory

winding up or of proceedings for other procedures referred to in point 1

3) has been convicted by judgment that has the force of res judicata of any offence concerning hisher professional conduct such as breaching the obligations concerning export control

4) has been guilty of grave professional misconduct such as breaching its obligations concern-

ing information security and security of supply or a similar offence in association with a previ-ous contract which the contracting authorityentity can prove

5) whose reliability has been proven to be inadequate to the degree where a risk to national

security cannot be excluded

6) has not fulfilled obligations to pay taxes or social security contributions in Finland or in the

country in which it is established or

7) is guilty of serious misrepresentation in supplying the information to the contracting au-

thorityentity required to apply the provisions of this Chapter or has neglected to provide the required information

The provisions laid down in subsection 1 points 3 and 4 shall apply in cases where the person

guilty of a mistake or negligence is a director or any person having powers of representation

decision or control in respect of the candidate or tenderer The decision on the exclusion may

take account of other matters such as the seriousness of the offence or omission the connec-

tion with the object of the contract the time lapsed any other implications of the offence and

any remedial action taken by the person convicted of the offence or omission

Section 49

Verification of the criteria for exclusion

The contracting authorityentity may request that the candidates and tenderers and the com-

petent authorities of other European Union member states in accordance with the appropriate

regulations submit evidence and clarifications in order to verify whether the exclusion criterion referred to in Section 47 or 48 applies to the candidate or tenderer

As regards Section 47 and Section 48(1)(3) the contracting authorityentity shall accept as

evidence an extract from the criminal record issued by a competent authority in the country in

which the tenderer is established As regards Section 48(1)(2 6) a certificate issued by the competent authority shall also be accepted as evidence

Where the country in which the candidate or tenderer is established does not issue such ex-

tracts or documents they may be replaced by a declaration on oath or by a solemn declaration

under the law of the country in which the representative of the candidate or tenderer is estab-

lished

23

Section 50

Requirements and references relating to the suitability of candidates and tenderers

The contracting authorityentity may set requirements relating to the candidates or tenderers

financial and economic standing technical capacity professional ability information security

security of supply and requirements concerning quality and request that the candidates and tenderers submit the related reports

In order to verify the requirements and that the requirements are satisfied the references re-

quested shall be related to the candidates or tenderers ability to perform the contract and

they shall be in proportion to the subject matter purpose and scope of the contract Require-

ments and references shall be indicated in the contract notice Candidates or tenderers failing

to satisfy the minimum requirements set by the contracting authorityentity shall be excluded from participation in the competitive bidding

The contracting authorityentity shall indicate in the contract notice any objective and non-

discriminatory criteria and rules which it shall apply in restricted procedures negotiated pro-

cedures or in the competitive dialogue procedure to admit candidates or tenderers to the com-

petitive bidding or negotiations The contracting authorityentity shall state the minimum

number of candidates and where appropriate also the maximum number of candidates

The contracting authorityentity may invite candidates or tenderers to supplement or clarify

the references and other documents

Section 51

Register data

The contracting authorityentity may request that the candidate or tenderer prove under the law of the country in which it is established that

1) it is registered in a professional or trade register

2) it carries out a trade by providing a declaration on oath or certificate and

3) it is entitled to provide a service in the country in which it is established by providing a li-cense or a certificate of membership of an organisation

Section 52

Economic and financial standing

The contracting authorityentity may request that a candidate or tenderer furnish proof of its financial and economic standing by references such as

1) a statement from a bank or credit institution or evidence of professional risk indemnity in-surance

2) a profit and loss account balance sheet annual report financial statements and group fi-

nancial statements if these must be published in the country in which the candidate or ten-

derer is established and

3) a statement of the undertakings overall turnover and turnover in the area that is the object

of the contract for a maximum of the three most recent fiscal periods if information on these turnovers is available

If for any valid reason the candidate or tenderer is unable to provide the documents request-

ed by the contracting authorityentity it may demonstrate its economic and financial standing

by any other document which the contracting authorityentity considers appropriate

24

Section 53

Technical capacity and professional ability

The contracting authorityentity may request that the candidate or tenderer furnish proof of its

technical capacity and professional ability by the following documents

1) the educational and professional qualifications of the candidate or tenderer or those of the

management of the undertaking and in particular those of the persons responsible for man-

aging the work or providing services or products that involve siting or installation functions or services

2) a list of the works carried out over a period not exceeding the past five years accompanied

by a certificate of satisfactory execution of the most important works the certificate shall indi-

cate the value date and site of the works and shall specify whether they were carried out ac-

cording to the rules of the trade and properly completed where appropriate a competent au-thority shall submit these certificates to the contracting authorityentity directly

3) a list of the principal deliveries carried out or the main services provided over a period not

exceeding the past five years with the sums dates and recipients involved where the recipi-

ent was a public body the list shall be verified by the competent authority where the recipient

was a private purchaser by the purchasers certification or failing this by a declaration of the

candidate or tenderer

4) an indication of the technical experts or bodies involved whether or not they belong directly

to the candidate or tenderer especially those responsible for quality control and in the case of

public works contracts those experts and bodies upon whom the contractor can call in order to carry out the work

5) the candidates or tenderers description of the tools equipment and actions by which it

ensures quality as well as the research and testing equipment required to implement the con-tract and the internal rules regarding industrial property and copyrights

6) a certificate for the inspection carried out by the candidate or tenderer or on its behalf by a

competent official body of the country in which the candidate or tenderer is established regard-

ing the candidatersquos or tendererrsquos production capacities technical capacity research or trial sys-

tems or quality control measures which it will implement

7) a statement of the average annual manpower of the service provider or contractor and the number of managerial staff for the last three years as a maximum

8) a statement of the tools fixtures technical equipment number of personnel know-how and

sources available to the service provider or tenderer for carrying out the contract for fulfilling

the additional needs that may arise from any crisis that the contracting authorityentity may

undergo or for the maintenance modernisation or adaptation of the products that are the ob-

ject of the contract in addition information on the geographic location of the tools fixtures

technical equipment number of personnel know-how and sources in the event that these are located outside of the European Union

9) with regard to the products to be supplied samples descriptions and photographs the au-

thenticity of which must be certified if the contracting authorityentity so requests and certifi-

cates drawn up by an official quality control institute or agencies of recognised competence

attesting to the conformity of the products to be supplied with technical specifications or standards and

10) with regard to public contracts having as their object supplies requiring a service or siting

or installation work an indication of professional ability efficiency experience and reliability

If appropriate to the object of the contract the contracting authorityentity may request that

the candidate or tenderer provide an indication of the environmental management measures to

be applied when performing a public works or service contract Should the contracting authori-

tyentity require the production of certificates drawn up by independent bodies attesting the

compliance of the tenderer with environmental management standards it shall refer to the

Community eco management and audit scheme (EMAS) or to the environmental management

standards based on relevant European or international standards certified by bodies conform-

25

ing to Community law or relevant European or international standards concerning certification

The contracting authorityentity shall accept equivalent certificates from bodies established in

other European Union member states and other evidence of equivalent environmental man-agement measures from the suppliers

If appropriate to the object of the contract the contracting authorityentity may request that

the candidate or tenderer provide an indication of the quality assurance measures Should the

contracting authorityentity require the production of certificates drawn up by independent

bodies attesting to the compliance of the tenderer with quality assurance standards the con-

tracting authorityentity shall refer to quality assurance systems based on relevant European

standards series certified by bodies conforming to the European standards series concerning

certification The contracting authorityentity shall accept equivalent certificates from bodies

established in other European Union member states and other evidence of equivalent quality assurance measures from the tenderers

If for any valid reason the candidate or tenderer is unable to provide the documents request-

ed by the contracting authorityentity it may demonstrate its economic and financial standing by any other document which the contracting authorityentity considers appropriate

Section 54

Requirements on information security set for candidates and tenderers

If classified documents are submitted drawn up or otherwise dealt with to carry out a call for

tender the contracting authorityentity may set requirements for candidates or tenderers to

meet the information security requirements laid down for authorities The contracting authori-

tyentity may request candidates or tenderers to provide commitments or information which

prove their capacity to meet the information security requirements

For candidates who have not obtained the certificate or commitment referred to in Section 1

the contracting authorityentity may grant additional time to obtain the certificate or commit-

ment In that case a deadline shall be set for the delivery of these In addition to the com-

mitments and information provided by the candidate the contracting authorityentity may render and consider any supplemental investigations it has conducted

Section 55

Legal form of the candidate and the tenderer and indication of the responsible per-sons

A candidate or tenderer which under the legislation of the country in which it is established is

entitled to provide the services that are the object of the contract may not be rejected solely

on the ground that under the legislation of the European Union member state in which the contract is awarded it would be required to be either a natural or legal person

In the case of public service and public works contracts as well as public supply contracts in-

volving siting and installation operations the contracting authorityentity may require candi-

dates and tenderers to indicate in the tender or the request to participate the names and pro-

fessional qualifications of the persons responsible for carrying out the services or the work in question

Section 56

Groups participating in the competitive bidding and reliance on the capacities of oth-er entities

Groups of suppliers may submit tenders or put themselves forward as candidates The con-

tracting authorityentity may not require these groups of candidates or tenderers to assume a

specific legal form in order to submit a tender or a request to participate However the group

may be required to do so during the term of the contract to the extent that this change is necessary for the satisfactory performance of the contract

26

A candidate or tenderer may rely on the capacities of other entities regardless of the legal na-

ture of the links it has with them to carry out the contract A group may rely on the abilities of

participants in the group or in other entities in order to perform the contract The candidate or

tenderer or a group thereof shall furnish the contracting authorityentity with proof that the

requirements relating to economic and financial standing technical capacity and professional

ability and other requirements are satisfied This proof may include contracts between compa-

nies or other binding documents demonstrating that the capacities to satisfy the requirements are accessible by the candidates or tenderers

Section 57

Selecting the tender

The contract awarded shall be either the economically most advantageous tender from the

point of view of the contracting authorityentity in accordance with the comparison criteria

linked to the object of the contract or the lowest in price When the award is made to the eco-

nomically most advantageous tender the criteria may include for example quality price

technical merit aesthetic and functional characteristics environmentally friendly characteris-

tics running costs costs associated with a long life cycle cost effectiveness after-sales ser-

vice and technical assistance delivery date delivery period and period of completion security of supply and interoperability and functional characteristics

The contracting authorityentity shall specify in the contract notice or the invitation to tender

documentation the comparison criteria and the relative weighting which it gives to each of the

criteria chosen to determine the economically most advantageous tender In the competitive

dialogue procedure the equivalent information shall be specified in the contract notice or the

project description The weighting may also be specified by indicating a reasonable range If it

is not reasonably possible to specify the relative weighting of the comparison criteria they

shall be specified in the order of importance

Section 58

Abnormally low tenders

The contracting authorityentity may reject tenders that are abnormally low in relation to the

quality and scope of the contract Before it may reject a tender the contracting authori-

tyentity shall request in writing a written report from the tenderer on the constituent ele-ments of the tender

The request referred to in subsection 1 may relate in particular to the economic and technical

solutions chosen for the manufacture of the goods supply of the service or execution of the

work exceptionally favourable conditions for the execution of the contract the originality of

the proposed solution employment protection at the place where the contract is executed and

compliance with the provisions relating to working conditions or the possibility of the tenderer

receiving state aid The contracting authorityentity shall verify the constituent elements of the tender taking into account the evidence supplied

The contracting authorityentity may reject a tender which is abnormally low in price because

the tenderer has obtained state aid illegally The tender can be rejected only after a sufficient

time limit has been fixed for the tenderer to prove that the state aid in question was granted

legally If the contracting authorityentity rejects the tender because of illegal state aid it shall report the matter to the European Commission

Section 59

Taking account of a subsidy awarded by the contracting authorityentity in the com-parison of tenders

If the tenderer is an entity belonging to the contracting authorityentitys organisation or if the

contracting authorityentity has granted or will grant the tenderer a financial subsidy which will

affect the price of the tender in the comparison of the tenders the contracting authorityentity

27

shall take into account the factors which will genuinely affect the price of the tender paid by

the contracting authorityentity such as the financial subsidy in question

Chapter 9 Subcontract agreements

Section 60

Subcontracts with related companies

The contracting authorityentity may request the tenderer to state in its tender which part of

the contract it plans to award as a subcontract to related companies and to list these compa-

nies The contracting authorityentity may also request tenderers submitting tenders as a

group as defined in Section 56 to indicate in their tender which part of the contract they plan

to award as a subcontract to their related companies and to list these companies If the rela-

tionships between the companies change during the procurement procedure the tenderer shall update the information included in its tender

A related company means a company which is under the direct or indirect control of the ten-

derer or which has direct or indirect control of the tenderer or which jointly with the tenderer

is under the control of another company on the basis of ownership financial contribution or the

regulations under which the company operates A company is considered to have control of

another company when it owns the majority of that companys unrestricted shareholder equity

controls the majority of the companys shareholders voting rights or may appoint half of the

members of the companys administrative managerial or supervisory body

The provisions of Sections 62-66 of this Act concerning subcontracting agreements are not

applicable to subcontracting agreements which the tenderer has entered into with a related

company or when the tender has been submitted by a group as defined in Section 56 to a

company belonging to the same group or a company which is a related company of a company

belonging to the group

Section 61

Selecting a subcontractor

The tenderer may select its subcontractors in all subcontracting agreements unless otherwise prescribed in Sections 62ndash66 of this Act

Section 62

Requirements concerning subcontracting agreements

The contracting authorityentity shall define the requirements for a subcontracting agreement

in the contract notice and further specify them in the invitation to tender In defining the re-

quirements for subcontracting agreements the principles of proportionality and non-discrimination must be complied with

The contracting authorityentity may require that the tenderer state in the tender which part

or parts of the contract it plans to subcontract to third parties the content of the subcontract-ing agreement and the chosen subcontractors shall also be stated

In addition to the provisions of subsection 2 the contracting authorityentity may require that

the tenderer selected as a contracting party shall

1) in accordance with the procedures laid down in Sections 64ndash66 of this Act invite bids on

part or all of the subcontracts included in the tender and stated in the notice in accordance with subsection 2 or

2) award the minimum amount of the contract value as defined by the contracting authori-

tyentity to third parties as subcontracts and invite bids on these subcontracts in accordance

with the procedures laid down in Sections 64ndash66 of this Act The contracting authorityentity

shall in that case define as percentages the minimum and maximum amount the tenderer shall

award to third parties as subcontracts and require that the tenderer state in its tender which

28

part or parts of the contract it plans to award to third parties as subcontracts in order to fulfil

the requirement of the contracting authorityentity The maximum amount defined by the con-tracting authorityentity shall not exceed 30 percent of the value of the contract or

3) invite bids on a part or parts of the subcontracts which it plans to award to third parties in

addition to the subcontracts mentioned in point 2 above In that case the contracting authori-

tyentity shall require that the tenderer specify in its tender those parts of the contract which it

plans to award as subcontracts to third parties in addition to the subcontracts mentioned in point 2 above

In addition to the provisions of subsections 2 and 3 the contracting authorityentity may re-

quire that the tenderer report any changes occurring at the subcontractor level during the im-

plementation of the contract

The contracting authorityentity shall set the maximum and minimum amount as defined in

subsection 3 point 2 having regard to the object and value of the contract and the character of the industry sector in question the competitive situation and technical capacity

The tenderer has the right to award more subcontracts to third parties than required by the contracting authorityentity in accordance with this Section

Section 63

Rejecting a subcontractor

The contracting authorityentity may specify requirements concerning the subcontractors fi-

nancial and economic situation technical capacity and professional competence information

security security of supply or quality These as well as other requirements concerning the

suitability of the subcontractor shall be stated in the contract notice These requirements shall

be equitable and non-discriminatory and conform to the requirements set in the invitation to tender concerning the suitability of the candidate or tenderer

The contracting authorityentity may decide to reject a subcontractor selected by the tenderer

during the contract procedure or the implementation of the contract if the subcontractor does

not meet the requirements set in the contract notice concerning the suitability of the subcon-

tractor or the exclusion criterion laid down in Section 47 or Section 48 applies to the subcon-

tractor The contracting authorityentity shall justify the rejection in writing to the tenderer

Section 64

Implementation of subcontracts

A tenderer selected as a contracting party shall act openly and treat any and all subcontractors

equally and in a non-discriminatory manner

A tenderer selected as a contracting party shall provide for the publication a subcontract notice

concerning those subcontracts to which the bidding obligation laid down in Section 62(3) ap-

plies and whose estimated value without value added tax exceeds the EU thresholds men-

tioned in Section 12 The notice obligation shall not apply to a subcontract which fulfills the

requirement set for a direct contract award mentioned in Sections 22ndash23 The provisions of

Sections 14ndash16 shall apply to the calculation of the estimated value of subcontracts

The tenderer selected as the contracting party shall specify in the subcontract notice the crite-

ria which the tenderer will apply in assessing the suitability of the subcontractors and in select-

ing them These criteria shall be equitable and non-discriminatory and conform to the criteria

that the contracting authorityentity applies in assessing the suitability of the tenderers The

requirements shall be related to the object of the subcontract and be proportional to the scope

of the subcontract

A tenderer selected as a contracting party may publish a subcontract notice also concerning

those subcontracts which meet the criteria for the subcontracts referred to in Sections 22ndash23

29

Section 65

Exemption from an obligation related to subcontracting

A tenderer selected as a contracting party may not be required to enter into a subcontract if it

indicates in a manner satisfactory to the contracting authorityentity that none of the subcon-

tractors that participated in the competition or none of their tenders fulfil the requirements

set in the subcontract notice and therefore the tenderer selected as a contracting party could

not fulfil the contract requirements

Section 66

Framework agreements

The provisions of Section 62 shall not apply to subcontracts awarded by the tenderer selected

as a contracting party if the framework agreement was put out to tender in accordance with

the provisions of Section 64

Subcontracts based on a framework agreement shall be awarded in accordance with the condi-

tions confirmed in the framework agreement and concluded between the original participants

to the framework agreement Conditions analogous to those of the framework agreement shall be complied with in subcontracting agreements

The framework agreement may not be used in such a way as to distort restrict or prevent

competition

The term of the framework agreement may not exceed seven years In exceptional cases the

framework agreement may be longer in duration when duly justified by the expected life cycle

of the supplies equipment and systems delivered and the technical problems that might re-

sult from the change of supplier

Section 67

The responsibility of the tenderer for carrying out the contract

The requirements set by the contracting authorityentity on the basis of this Chapter and the

notices issued by the tenderers based on them do not limit the responsibility of the tenderer

selected as a contracting party to carry out the contract PART III

National procedures

Chapter 10 Tendering procedures for contracts below the EU threshold for second-

ary service contracts referred to in Annex B and for certain other contracts

Section 68

Contract award procedures

The contract award procedures specified in this Chapter may be used for service contracts

public works contracts and the service contracts referred to in Annex A which are below the EU

threshold referred to in Section 12(1) but above the national threshold referred to in Section

13(1) and for secondary service contracts referred to in Annex B which are above the national

threshold referred to in Section 13(1)

The procedures laid down in this Chapter may also be used for defence contracts referred to in

Section 5 when the value of the defence contracts exceed the national threshold as referred to

in Section 13 provided that the criteria set in Article 346(1)(b) of TFEU are fulfilled

30

Section 69

General rules of procedure

The contracting authorityentity shall aim to take advantage of the prevailing competitive con-

ditions and award the contract primarily through competitive bidding A sufficient number of

tenders shall be requested in terms of the scope and subject matter of the contract to ensure

competition

A public notice shall be issued however the publication obligation does not apply in the case

of contracts that fulfil the criteria set in Article 346(1)(b) of TFEU

The contracting authorityentity may request a tender directly from one supplier if competitive

bidding cannot be carried out for reasons justified on the basis of national defence state secu-rity or security of supply

The contracting authorityentity may also request a tender directly from one supplier if

1) no tenders or no suitable tenders were received in the competitive bidding carried out

previously a further requirement is that the conditions of the original invitation to ten-

der are not fundamentally changed

2) for technical reasons or for reasons connected with the protection of exclusive rights the contract may be awarded only to a particular supplier

3) for reasons of urgency brought about by a crisis it is not possible to carry out competi-tive bidding

4) execution of the contract is absolutely necessary and competitive bidding cannot be

carried out for reasons of extreme urgency brought about by events unforeseeable by

and independent of the contracting authorityentity

5) the product to be acquired are manufactured purely for scientific or research purposes

and it is not a matter of establishing commercial viability of the products or to recover research and development costs

6) the object of the contract is a research and development service that has not been ex-cluded from the scope of this Act on the basis of Section 8

7) the contract is necessary in order to determine whether the final result of the research

and development service is suitable to be used as intended by the contracting authori-tyentity

8) the object of the contract consists of supplies quoted and purchased on a commodity market

9) the supplies are purchased on particularly advantageous terms from either a supplier

winding up its business activities or from the receivers of a bankruptcy or liquidators in

insolvency proceedings an arrangement with creditors or a similar procedure

10) the object of the contract is a second-hand product

11) the object of the contract is based on a supplementary contract right incorporated into

the contract

12) the object of the contract is additional deliveries by the original supplier which are in-

tended either as a partial replacement of existing supplies or installations or as the ex-

tension of existing supplies or installations and a change of supplier would result in in-

compatibility or disproportionate technical difficulties in operation and maintenance

13) the object of the contract is additional works or services not included in the project ini-

tially but which have through unforeseen circumstances become necessary for the per-

formance of the works or services as originally described

31

Section 70

Negotiations with tenderers and specifying the tender and the invitation to tender

The contracting authorityentity may discuss all aspects of the contract with the tenderers dur-

ing the negotiation provided that the negotiations do not result in changing constituent ele-

ments in the invitation to tender in a discriminating manner or in a manner which distorts

competition

The purpose of the negotiations shall be to select the best tender in accordance with Section

73(2) or to determine one or more alternative solutions for contract implementation before

sending the final invitation to tender The dialogue may take place in successive stages in or-

der to reduce the number of tenders or solutions to be discussed during the dialogue by apply-

ing the comparison criteria indicated in the invitation to tender or project description

In competitive bidding the requirement for negotiations shall be that the negotiations and the

criteria to be complied with during the negotiations have been stated in the invitation to tender

or the project description

The contracting authorityentity shall ensure equal treatment of all candidates and tenderers

during the negotiations and shall not provide information in a manner that may compromise

the equal treatment of the participants in competitive bidding

Section 71

Invitation to tender

The invitation to tender shall be submitted in writing and drawn up to be sufficiently clear in

order to enable submission of commensurate and mutually comparable tenders The invitation

to tender shall contain all information that is particularly important in terms of the contracting

procedure and submitting the tender

The invitation to tender shall include the award criterion and where the criterion for the award is that of the economically most advantageous tender the comparison criteria and the ranking thereof The invitation to tender shall indicate a reasonable time allotted for the tenderers to submit a tender taking into consideration the scope and subject matter of the contract

The contracting authorityentity may charge a reasonable fee for the invitation-to-tender doc-

uments to recover the costs arising from the exceptionally extensive scope of the documenta-

tion the materials related thereto or other similar factors

Section 72

Drawing up the invitation to tender and submitting the tender

The invitation to tender and the tenders based thereon shall be drawn up in writing They may be executed orally only in exceptional circumstances if the written procedure is justifiably not appropriate If the invitation to tender or the tenders are not drawn up in writing a record shall be kept of the negotiations held with the tenderers the record shall indicate the infor-mation impacting the course of the procedure and the position of the tenderers

Section 73

Selection of a tender and a tenderer rejecting a tender

The contracting authorityentity may exclude from the competitive bidding any supplier which

taking into consideration the scope and object of the contract and other criteria does not pos-

sess the qualifications to carry out the contract The contracting authorityentity may exclude

32

from the competitive bidding any tender submitted by a tenderer who does not possess the

qualifications to carry out the contract when taking into consideration the scope and object of

the contract and other criteria

The contracting authorityentity shall award the contract to the tenderer whose tender has the

lowest price or complies with the comparison criteria set in the invitation to tender and is eco-

nomically the most advantageous

The contracting authorityentity may reject a tender which does not fulfil the essential condi-

tions set in the invitation to tender or has an abnormally low price in terms of the subject mat-

ter and scope of the contract Before it may reject a tender the contracting authorityentity

shall request in writing details of the constituent elements of a tender that is abnormally low in

price

PART IV

General provisions on decisions concerning contract awards conclusion of contracts

procurement rectification public access to the contract documents and further provi-sions

Chapter 11

Decisions concerning the award of contracts and notification thereof

Section 74

Decision concerning the award

The contracting authorityentity shall provide in writing the decisions affecting the position of

the candidates and tenderers and the results of the tendering procedure including the grounds for the outcome of the procedure

The decision or the related documentation shall state the factors that fundamentally affected

the outcome including the grounds for rejecting the candidate tenderer or tender and the

grounds on which the accepted contracts were compared As regards a decision concerning

asking for bids for a contract based on a framework arrangement stating the facts showing

that the selection and award criteria have been applied as required under Section 27 shall

suffice If the standstill period referred to in Section 79 applies to the contract the decision or

the related documents shall also state the period of time after which the contract may be awarded

The contracting authorityentity is not required to make a decision referred to in this Section

concerning a contract for the additional supplies referred to in Section 23 or Section 69(4)(12)

and additional service or contract referred to in (13) or the temporary arrangements for a con-tract referred to in Section 95

In contracts based on framework agreements the contracting authorityentity is not required to make the decision referred to in this Section if

1) the contract is awarded in accordance with the conditions laid down in the framework

agreement without asking for bids or

2) the competitive bidding is based on a framework agreement when the value of the contract

does not exceed the EU threshold

33

Section 75

Suspending the contract award procedure

The contract award procedure can be suspended only for verifiable and justifiable reason

The provisions of Section 74 concerning contract ruling shall apply to the suspension of the

contract award procedure

Section 76

Appeal instructions and instructions for request for rectification

Instructions for appeal shall accompany the decisions made by the contracting authori-

tyentity explaining how to refer a case to the Market Court for consideration contact infor-

mation of the contracting authorityentity for the notice referred to in Section 90 and instruc-

tions for seeking rectification (petition instructions) explaining how the candidate or tenderer can have the case submitted for reconsideration through procurement rectification

With regard to the issuing and amending appeal and petition instructions the provisions of

Chapter 3 of the Administrative Judicial Procedure Act (5861996) shall apply in terms of ap-

peals and the provisions of Chapter 7 of the Administrative Procedure Act (4342003) shall

apply in terms of petition instructions

Section 77

Notification of the decision concerning the contract award

The decision of the contracting authorityentity including the grounds for the decision and the

appeal and petition instructions shall be submitted in writing to the parties concerned The de-

cision including the aforementioned documents shall be submitted using the electronic con-

tact information which the candidate or tenderer has given to the contracting authorityentity

When using the electronic contact information the candidate and tenderer shall be considered

to have received notice of the decision and the accompanying documents on the date on

which the electronic message containing the aforementioned documents is available in the re-

cipients reception equipment such that the message can be handled Such a point in time shall

mean the date on which the message was sent unless a reliable explanation concerning the

malfunction of telecommunications links or another analogous reason because of which the

electronic message reached the recipient later When electronic notification is used the con-

tracting authorityentity shall include in the message a separate note concerning the date

when the message was sent

The decision including the grounds for it and the appeal and petition instructions may also be

sent via regular mail under the Administrative Procedure Act Candidates and tenderers shall

be considered to have received notification of the decision and the accompanying documents

on the seventh day from the date on which they were sent unless the candidate or tenderer

proves that the notification occurred at a later date

Notification on the decision of the contracting authorityentity shall be issued without undue

delay at the latest 15 days from the date on which the contracting authorityentity receives a written request concerning notification on the decision that was made

34

Chapter 12

Public contract

Section 78

Concluding a public contract

Having made the decision to award a public contract the contracting authorityentity shall

conclude the contract The contract is concluded upon signing a written agreement

Section 79

Standstill period

In the case of a contract above the EU threshold referred to Section 12 above the contract can

be concluded at the earliest 21 days from the date when the candidate or tenderer received or is considered to have received the decision and instructions for appeal (standstill period)

A standstill period shall not be applied in direct contract awards

The provisions of Section 92 shall apply to the effect of an appeal on concluding a contract

Section 80

Exceptions to the compliance with the standstill period

The standstill period need not be upheld if

1) the contract concerns a procurement carried out on the basis of the framework agreement in accordance with Section 27

2) the contract is awarded to the tenderer who submitted the only acceptable tender and no

other tenderers or candidates remain in the competitive bidding whose position would be af-

fected by the selection of a co-contractor

3) the contract concerns a procurement referred to in Section 68(2)

Section 81

Notification of direct awards and conclusion of public contracts

In direct awards exceeding the EU threshold the contracting authorityentity may after hav-

ing made the award decision send a notice for publication concerning the direct award of con-

tract before concluding the contract In that case the contract can be concluded at the earli-est 14 days after the publication of the notice in the Official Journal of the European Union

Chapter 13

Procurement rectification

Section 82

Rectification of a procurement

The contracting authorityentity may remove an incorrect decision or annul an award decision

made during the contracting procedure concerning the legal status of the candidates or ten-

35

derers and make a new decision (procurement rectification) if the award decision or other deci-

sion reached during the contracting procedure is based on an error that occurred in the appli-cation of the law

Amending an award decision or other decision does not require the consent of the party con-

cerned However an award decision or other decision cannot be amended through procure-

ment rectification if the contract has been concluded

Section 83

Initiation of procurement rectification

The contracting authorityentity may take up a procurement rectification on its own initiative

or in response to a demand of the party in question The contracting authorityentity shall noti-fy the concerned parties immediately of the initiation of a procurement rectification

A subcontractor does not have the status of a concerned party referred to in subsection 1 of this section in terms of the matter concerning the contract

The concerned party shall present the demand within 14 days after receipt of the notification

of the award decision or other decision made by the contracting authorityentity during the

contracting procedure The contracting authorityentity itself may amend the award decision or

other decision no later than 60 days after the date the decision concerning the procurement rectification is made

Appealing the case to the Market Court does not prevent a procurement rectification or its pro-

cessing A procurement rectification may also apply to a decision of the contracting authori-

tyentity that has become legally binding if the case has not been submitted to the Market

Court for ruling

Section 84

Effect of the processing of procurement rectification on the proceedings in the Mar-ket Court

The initiation and processing of a procurement rectification do not affect the time limit within

which the concerned party has the right pursuant to this Act to submit an appeal against the

decision to the Market Court

If the award decision or other decision that was reached during the contract award procedure

is to be amended and has been appealed against before the Market Court the Market Court

shall be notified of the processing of the case through procurement rectification and informed

of the decision reached In processing a procurement rectification the contracting authori-

tyentity may prohibit the enforcement of the award decision or other decision or order it to be

suspended The Market Court shall be notified of a prohibition or suspension of enforcement if an appeal has been lodged against the decision in the Market Court

If the contracting authorityentity amends its award decision or other decision by means of a

procurement rectification such that as a result the appellant to the Market Court no longer has

the need for judicial relief or the need for a justified decision the Market Court may decline to

process such a case without giving a ruling on the principal claim

Section 85

The application of procurement rectification to other contracts

A procurement rectification can also be applied to amend an award decision or other decision

made by the contracting authorityentity during the contracting procedure to which this Act

36

shall not apply pursuant to Section 6(2) and Sections 7 8 or 13 A decision made on account

of such a contract rectification may not be appealed against in the Market Court or under the Administrative Judicial Procedure Act or Local Government (Act 3651995)

Chapter 14

Public access to the contract documents

Section 86

Application of the provisions concerning public access to the contract documents

The Act on the Openness of Government Activities (6211999) shall apply to public access to

the documents of the contracting authorityentity and the fees charged for the documents if

the contracting authorityentity is the authority referred to in Section 4 of the aforementioned

Act or if it is obliged to comply with that Act on the basis of a provision contained elsewhere in the Act

In terms of the right of parties other than the participants in the competitive bidding conducted

by the contracting authorityentity referred to in subsection 1 to have access to the docu-

ments drawn up and received for processing of the tender and the confidentiality obligation of

those employed by the contracting authorityentity the provisions of the Act on the Openness

of Government Activities shall apply to the right of concerned parties to have access to the

document to how public access to the document is determined and to the processing and resolving of the matter concerning access to information

The decision of the contracting authorityentity which has resolved the matter concerning ac-

cess to information can be appealed in accordance with the provisions of Section 33 of the Act

on the Openness of Government Activities The Supreme Administrative Court in whose judicial

district the contracting authorityentity is located is the competent Supreme Administrative

Court for considering the appeal submitted on the basis of a decision made by a party other

than the contracting authorityentity acting as an authority

Chapter 15

Appealing and the implications thereof

Section 87

Parties entitled to appeal

A concerned party may appeal the matter to the Market Court by issuing a complaint A sub-

contractor does not have the position of an interested party referred to in subsection 1 of this Section in terms of the matter concerning the contract

In matters concerning control procedures of the European Union the Ministry of Economic Af-

fairs and Employment may also refer the matter to the Market Court for consideration

Section 88

Object of the appeal

An appeal may be lodged before the Market Court against an award decision of the contracting

authorityentity referred to in this Act or other decision reached by the contracting authori-

tyentity during the contracting procedure which affects the status of the candidate or the ten-derer

37

An appeal may not be lodged before the Market Court against an award decision or other deci-

sion of the contracting authorityentity which concerns only the preparation of the contracting

procedure An appeal may not be lodged against a decision or other measure taken by the

supplier selected as a contracting party concerning a subcontracting agreement or an award

decision or determination made by the contracting authorityentity during the implementation of the contract

A contract based on a framework agreement referred to in Section 27 above and a contract

referred to in Section 68(2) may not be appealed unless a processing authorisation is issued by the Market Court The authorisation shall be issued if

1) the processing of the case is important in terms of applying the Act in other similar matters

or

2) there is a cogent reason for it related to the procedures of the contracting authorityentity

Section 89

Time period for appeal

Unless otherwise prescribed in this Section an appeal must be lodged in writing within 14 days

from the date when the candidate or tenderer received the notice concerning the contract with the instructions for appeal

If the contracting authorityentity has concluded a public contract after the contract decision

was issued on the basis of Section 80 point 1 without complying with the standstill period

the appeal shall be lodged within 30 days from the date when the tenderer has received notice

of the decision with the instructions for appeal

An appeal before the Market Court shall be lodged within six months of the date of the contract

decision provided that the candidate or tenderer has received notice of the contract decision

and the contract decision or appeal instructions were materially deficient or the appeal instruc-tions have been missing altogether

If the contracting authorityentity has with regard to a contract above the EU threshold re-

ferred to in Section 12 above delivered a notice regarding a direct award of contract for publi-

cation in the Official journal of the European Union the complaint must be lodged within 14 days from the publication of the notice

If the notice referred to in subsection 4 has not been published the appeal concerning a direct award of contract shall be lodged

1) within 30 days of the date of publication of a contract-award notice has been published in

the Official Journal of the European Union or

2) within six months from the conclusion of the contract at the latest

Section 90

Notification of appeal to the contracting authorityentity and the list of procurement

cases

The appellant in a contract-related matter must notify the contracting authorityentity in writ-ing of referring the case to the Market Court for consideration

The notification must be delivered to the contracting authorityentity at the latest when the

complaint concerning the contract is delivered to the Market Court The notification shall be delivered to the address provided by the contracting authorityentity

38

The Market Court shall maintain and publish a list which is as comprehensive and up-to-date

as possible of contract-related matters pending at the Market Court

Section 91

The contracting authorityentity as the opponent and compensation of legal costs

In the proceedings regarding contract-related matters the contracting authorityentity shall be considered the opponent of the party or agency lodging the appeal

The provisions of Section 74 subsections 1 and 2 of the Administrative Judicial Procedure Act shall apply to the compensation of legal costs regarding contract-related matters

The provisions of Section 74 subsections 1 and 2 of the administrative Judicial Procedure Act

concerning public authorities or other public parties shall apply to the decision concerning the

liability to provide compensation for the legal costs of the opponent If one contracting authori-

tyentity has been responsible for the contracting procedure on behalf of the other contracting

authorities the obligation regarding compensation of legal costs may be placed on the con-

tracting authorityentity which acted on behalf of the other contracting authorities

Section 92

The effect of the appeal on concluding the contract

In case of a contract where the standstill period or the time limit referred to in section 81 must

be observed the contracting authorityentity may not conclude the contract if the matter has

been brought up for consideration by the Market Court

If the Market Court decides a case concerning enforcement or decides on the principal claim

before the standstill period or the time limit referred to in Section 81 has expired the contract-

ing authorityentity shall observe the standstill period or the time limit referred to in Section

81 until the end of the period notwithstanding the ruling of the Market Court

Section 93

Interim decisions of the Market Court

While the appeal is under consideration the Market Court may prohibit suspend or allow the

implementation of the decision concerning the contract award or order the contracting proce-

dure to be suspended otherwise as an interim measure for the duration of the proceedings in the Market Court

When deciding on the measure referred to in subsection 1 the Market Court shall take into

consideration that the harm caused by the measure to the opponent the rights of third par-

ties the security of the state or the public interest may not outweigh its benefits

However the decision prescribed in subsection 1 of this Section cannot be carried out in the case of a contract referred to in Section 68(2) of this Act

A legally trained member of the Market Court may alone issue a ruling as an interim measure

Section 94

Interim commitment of the contracting authorityentity

While the appeal is under consideration the contracting authorityentity may provide a written

undertaking to the Market Court stating that it will not enforce the decision concerning the contract for as long as the matter is pending in the Market Court

39

If the contracting authorityentity provides the Market Court with the undertaking referred to

in subsection 1 the Market Court will not issue without a specific reason a decision on the

obligation to interim prohibition on implementing the decision to award the contract

Section 95

Temporary organisation of a contract

If an appeal has been lodged against a contract before the Market Court the contracting au-

thorityentity may temporarily organise the contract by ordering it from a supplier who partici-

pated in the contracting procedure or from a previous supplier if the nature of the contract is

such that executing the contract cannot be postponed for the duration of the Market Court pro-ceedings

Temporary contract arrangements must not hinder the execution of the following items by means of a decision of the Market Court

1) the decision of the contracting authorityentity to cancel the contract in full or in part

2) prohibit the contracting authorityentity from applying any erroneous item included in the contract document or otherwise complying with an incorrect procedure or

3) require the contracting authorityentity to rectify its incorrect procedure

Section 96

Sanctions imposed by the Market Court

If during the contract procedure actions have been taken which are against this Act or the provisions based thereon or against European Union legislation the Market Court may

1) cancel the decision of the contracting authorityentity in full or in part

2) prohibit the contracting authorityentity from applying any erroneous item included in the contract document or otherwise complying with an incorrect procedure

3) require the contracting authorityentity to correct its erroneous procedure

4) order the contracting authorityentity to pay a compensatory fee to the party which would

have had a genuine chance to win the bidding competition had the procedure been correct

5) impose an ineffectiveness sanction on the contracting authorityentity

6) order the contracting authorityentity to pay an infringement fine to the state

7) reduce the contract term to end after a period of time specified by the Market Court has

passed

The provisions of Sections 97ndash100 shall apply to determining the sanctions mentioned in sub-

section 1 points 4ndash7 above When determining these sanctions the Market Court may consid-

er the contract to have been concluded on the basis of specific circumstances provided that

the contracting authorityentity has especially commenced the implementation of the contract

The ineffectiveness sanctions infringement fine and reduction of contract terms may only be

issued in contracts exceeding the EU thresholds referred to in Section 12 However an ineffec-tiveness sanction cannot be imposed in a service contract in accordance with Annex B

Only a compensatory fee can be imposed in a contract referred to in Section 68(2) of this Act

40

Section 97

Compensation

Provision for compensation may be made if the harm caused to the contracting authori-

tyentity rights of third parties state security and the public interest by the measure defined

in Section 96(1)(1ndash3) is considered to outweigh the benefits or if the petition has been initiat-

ed following the conclusion of the contract With respect to setting the amount of the compen-

satory fee account shall be taken of the nature of the infringement or omission by the con-

tracting authorityentity the value of the contract in question and the costs and damages in-

curred by the petitioner The Market Court may however decide not to prove for compensa-

tion if the contracting authorityentity has refrained from implementing the contract during the proceedings in the Market Court

Without a specific reason the amount of compensation shall not exceed 10 percent of the val-

ue of the contract

Section 98

Ineffectiveness

The Market Court may declare a contract ineffective if

1) the contracting authorityentity has made a direct award of contract without the basis re-ferred to in this Act and the procedures referred to in Section 81

2) the contracting authorityentity has concluded the contract although there is an obligation in the contract to observe a standstill period

3) the contracting authorityentity has concluded the contract contrary to Section 92 although

the procurement case has been submitted to the Market Court for a decision

In addition a requirement in the situation referred to in subsection 1 points 2 and 3 above is

that the contracting authorityentity has made another infringement contrary to this Act which has affected the chances of the appellant to win the contract

If the contracting authorityentity has concluded the contract in a competition based on the

framework agreement on the basis of Section 80 without observing the standstill period and if

a breach has been committed in the competition in respect of Section 27(2 or 3) such that this

has affected the chances of the appellant to win the contract the Market Court may declare the contract ineffective

The Market Court shall decide to which contractual obligations ineffectiveness shall apply Inef-

fectiveness shall apply only to unfulfilled contractual obligations

Section 99

Non-imposition of ineffectiveness

In the situations referred to in Section 98 above the Market Court may decide not to impose

ineffectiveness for compelling reasons related to the public interest or state security Economic

interests which are directly related to the contract may be deemed compelling only if ineffec-tiveness of the contract would exceptionally have inequitable consequences

The Market Court may not impose ineffectiveness if it would result in serious endangerment of

the implementation of a defence and security project essentially important with respect to

state security

Section 100

41

Infringement fines and reduction of the contract term

The Market Court may order a contracting authorityentity to pay the state an infringement

fine if

1) the Market Court has declared the contract ineffective

2) the contracting authorityentity has concluded the contract although there is an obligation in the contract to observe a standstill period

3) the contracting authorityentity has concluded the contract contrary to Section 92 although the procurement case has been submitted to the Market Court for a decision or

4) the Market Court has decided not to declare the contract ineffective for compelling reasons related to the public interest or state security in accordance with Section 99

In the situation referred to in subsection 1 point 4 above the Market Court may in addition to

or instead of imposing a sanction reduce the contract term so that it ends after a period of time specified by the Court

The Market Court may order a contracting authorityentity to pay the state an infringement

fine or reduce the contract term so that it ends after a period of time specified by the Court

this applies to service contracts referred to in Annex B of this Act the value of which exceeds

the EU threshold as defined in Section 12 if the contracting authorityentity

1) has made a direct award of contract without the basis referred to in this Act and the proce-dures referred to in Section 81 not having been complied with in the direct award

2) has concluded the contract although there is an obligation in the contract to observe the standstill period

3) has concluded the contract contrary to Section 92 although the procurement case has been submitted to the Market Court for a decision or

4) has concluded the contract in a competition based on a framework agreement on the basis

of Section 80 without observing the standstill period and if a breach has been committed in the

competition in respect of Section 27(2 or 3) such that this has affected the chances of the ap-pellant to win the contract

In addition a requirement in the situation referred to in subsection 3 points 2 and 3 above is

that the contracting authorityentity has made another infringement contrary to this Act which

has affected the chances of the appellant to win the contract

With respect to issuing a sanction the Market Court shall take into account the nature of the

mistake or omission by the contracting authorityentity and the value of the contract in ques-

tion The sanction shall not exceed 10 percent of the value of the contract

Section 101

Allocation of sanctions and cumulative effect

If one contracting authorityentity has been responsible for the contracting procedure on be-

half of the other contracting authorities the obligation to compensate for legal costs can be

placed on the contracting authorityentity that acted on behalf of the other contracting authori-

ties

With respect to the sanctions referred to in this Act the Market Court shall take into considera-

tion that the cumulative effect may not become unreasonable for the contracting authori-

tyentity or its contracting party

42

Section 102

Conditional fine

The Market Court may impose a conditional fine in order to underline the importance of com-

plying with the prohibitions or obligations referred to in this Act The provisions of the Act on

Conditional Fines (11131990) shall apply to the imposing of and sentencing to the payment of

conditional fines

If one contracting authorityentity has been responsible for the contracting procedure on be-

half of the other contracting authorities the obligation to compensate for costs can be placed

on the contracting authorityentity that acted on behalf of the other contracting authorities

Section 103

Notification of the Market Courts ruling

The ruling of the Market Court along with the instructions for appeal shall be verifiably notified under the provisions of the Administrative Judicial Procedure Act

With the consent of the appellant and the contracting authorityentity the Market Courts deci-

sion together with the instructions for appeal may be publicised using the electronic contact

information the aforementioned parties have provided to the Market Court

When electronic contact information is used the appellant and the contracting authorityentity

shall be deemed to have been notified of the decision and instructions for appeal on the date

on which the message concerning the matter is available in the recipientsrsquo reception equipment

so that the message can be handled The provisions of Section 77(1) shall apply to electronic

notification

Section 104

Prohibition to appeal

A case that is within the jurisdiction of the Market Court cannot be appealed against under the

provisions of the Local Government Act or the Administrative Judicial Procedure Act

A decision or ruling concerning a contract which has been excluded from the scope of applica-

tion of this Act on the basis of Section 6(2) and Sections 78 or 13 may not be appealed under

the Administrative Judicial Procedure Act or the Local Government Act The subcontractor may

not under the Administrative Judicial Procedure Act or the Local Government Act appeal the

decision or action taken by the contracting authorityentity concerning the subcontract

Section 105

Appeals against the decisions of the Market Court

Appeals against a ruling of the Market Court can be lodged in the Supreme Administrative Court in accordance with the Administrative Judicial Procedure Act

As referred to in Section 93(1) an appeal cannot be lodged against the ruling by the Market

Court in the Supreme Administrative Court A ruling by the Market Court does not prevent the

case from being reconsidered by the Market Court if the grounds for the previous ruling have

changed

If the Market Court has ruled that it will not grant the processing authorisation referred to in

Section 88(3) then an appeal against this ruling can only be lodged if the Supreme Adminis-

trative Court grants a leave to appeal

43

Section 106

Application of the Administrative Judicial Procedure Act

The Administrative Judicial Procedure Act shall apply to appeals unless otherwise provided by this Act

Section 107

Implementation of rulings

A ruling of the Market Court has to be observed notwithstanding any appeal unless the Su-

preme Administrative Court orders otherwise The ruling of the Market Court issuing the sanc-

tion referred to in Section 96(1)(4ndash7) may only be implemented on the basis of a final ruling

The implementation of a ruling concerning a sanction shall be supervised by the Legal Register

Centre The Legal Register Centre must be informed of any ruling by the Market Court and

Supreme Administrative Court to issue a sanction

Section 108

Compensation for damages

Those who cause damage to a candidate tenderer or supplier shall be liable to pay compensa-

tion for the damage they have caused while acting in breach of this Act or any regulations based thereon or the European Union law

However when the claim for damages refers to costs incurred as a result of the tendering pro-

cedure the candidate or tenderer is entitled to compensation if it can provide proof of the in-

correct procedure as defined in subsection 1 and that had the procedure been correct it would have had a genuine chance to win the contract

In respect of the cases defined in subsection 1 and 2 a Court of first instance shall be the

competent court in accordance with Chapter 10 of the Code of Judicial Procedure

Chapter 16

Further provisions

Section 109

Disclosure of information

Notwithstanding the provisions concerning confidentiality provided for in the Act on the Open-

ness of Government Activities or in any other act the contracting authorityentity shall supply

statistics and other information concerning the different stages of the contract and performed

contracts to the Finnish authorities and European Union bodies to monitor contracts and ex-

change information on the scale and to the time limit required by European Union law Pursu-

ant to this Act the Ministry of Economic Affairs and Employment has the right to forward in-

formation it has received to the European Union authorities notwithstanding the regulations on confidentiality

The contracting authorityentity shall draw up a written report on each contract and framework

agreement which includes essential information on the contract contract procedure and the

candidates and tenderers who participated as well as on the decisions made in connection with

44

the contract The report and its main content shall be forwarded on request to the European

Commission A separate report is not required if corresponding information can be found in the

contract decision or other documents

To document the course of the realised contract procedure the contracting authorityentity

shall implement necessary measures in an electronic format

More specific rules are laid down in a Government decree on the obligation to provide statistics

and the responsibility of the contracting authorityentity to draw up reports on contract proce-

dures and contract decisions as referred to in subsection 1 which are to be forwarded to the

European Union bodies

Section 110

Entry into force and transitional provisions

This Act enters into force on 1 January 2012

If a contract procedure is started before the entry into force of this Act the provisions that

were in force at the time when this Act entered into force shall be applied The contract proce-

dure shall be deemed to have commenced when the contract notice was published A contract

which does not require the publication of the contract notice shall be deemed to have com-

menced when the invitation to tender or a meeting is sent or negotiations with suppliers begin

Measures necessary for the implementation of this Act may be undertaken before the Actrsquos

entry into force

45

ANNEX A

Primary services

Group No

Matter CPV Reference No

1 Maintenance and repair services 50000000-5 50100000-6-50884000-4 (except 50310000-1-50324200-4 and 50116510-9 50190000-3 50229000-6 50243000-0) and 51000000-9-51900000-1

2 Services related to international military assistance

75211300-1

3 Defence services military defence services and civil defence services

75220000-4 75221000-1 75222000-8

4 Investigation and security services 79700000-1-79720000-7

5 Land transport services 60000000-8 60100000-9-60183000-4 (except 60160000-7 60161000-4) and 64120000-3-64121200-2

6 Air transport services for passengers and freight except transport of mail

60400000-2 60410000-5-60424120-3 (except 60411000-2 60421000-5) 60440000-4-60445000-9 and 60500000-3

7 Transport of mail by land and by air 60160000-7 60161000-4 60411000-2 60421000-5

8 Railway transport services 60200000-0-60220000-6

9 Sea transport services 60600000-4-60653000-0 and 63727000-1-63727200-3

10 Support and auxiliary transport services 63100000-0-63111000-0 63120000-6-63121100-4 63122000-0 63512000-1 and 63520000-0-6370000-6

11 Telecommunications services 64200000-8-64228200-2 72318000-7 and 72700000-7-72720000-3

12 Financial services insurance services 66500000-5-66720000-3

13 Data-processing and related services 50310000-1-50324200-4 72000000-5-72920000-5 (except 72318000-7 and 72700000-7-72720000-3) 79342410-4 9342410-4

14 Research and development services(sup1) and evaluation tests

73000000-2-73436000-7

15 Accounting auditing and bookkeeping services

79210000-9-79212500-8

16 Management consulting(sup2) and related services

73200000-4-73220000-0 79400000-8-79421200-3 and 79342000-3 79342100-4 79342300-6 79342320-2 79342321-9 79910000-6 79991000-7 98362000-8

17 Architectural services engineering services and integrated engineering services urban planning and landscape architectural services related scientific and technical consulting services technical testing and analysis services

71000000-8-71900000-7(except 71550000-8) and 79994000-8

18 Building cleaning services and building and property management services

70300000-4-70340000-0 and 90900000-6-90924000-3

19 Sewage and refuse disposal services 90400000-1 to 90743200-9 (except 90712200-3)

46

sanitation and similar services 90910000-9-90920000-2 and 50190000-3 50229000-6 50243000-0

20 Training and simulation services in the fields of defence and security

80330000-6 80600000-0 80610000-3 80620000-6 80630000-9 80640000-2 80650000-5 80660000-8

(sup1) Except the research and development services referred to in Section 13(2)(5) (sup2) Except arbitration and conciliation services ANNEX B Secondary services

Group No

Matter CPV Reference No

21 Hotel and restaurant services 55100000-1-55524000-9 and 98340000-8-98341100-6

22 Support and auxiliary transport services 63000000-9-63734000-3 (except 63711200-8 63712700-0 63712710-3) 6372700-1-63727200-3 and 98361000-1

23 Legal services 79100000-5-79140000-7

24 Employment and personnel recruitment services(sup1)

79600000-0-79635000-4 (except 79611000-0 79632000-3 79633000-0) and 98500000-8-98514000-9

25 Health and social services 79611000-085000000-9 and -85323000-9 (except 85321000-5 and 85322000-2)

26 Other services

(sup1) Except employment contracts

47

ANNEX C NACEsup1ordm

Main category F CONSTRUCTION CPV code

2-digit level

3-digit level

4-digit level

Description Comments

45 Construction This two-digit level includes the following construction of new buildings and works reconstruction and common repairs

45000000

451 Site preparation

45100000

4511 Demolition and wreck-ing of buildings earth moving

This four-digit level includes the following - demolition of buildings and other structures - clearing of building sites and earth moving site excavation landfill and levelling trench dig-ging quarrying blasting etc - site preparation for mining

- overburden removal and other development and prepa-ration of mines and mining sites

This four-digit level also includes - building site underdrainage - drainage of agricultural or forestry land

45110000

4512 Test drilling This four-digit level includes the following - test drilling test boring and sampling for construction geophysical geological or similar purposes This four-digit level excludes the following - drilling of oil or gas wells comp 1120 - water well drilling 4525

45120000

sup1deg Council regulation (EEC) No 303790 (Official Journal of the European Union 293 24 October 1990 p 1) on the statistical classification of economic activities in the European Community issued on 9 October 1990 regulation as amended by Commission Regulation (EEC) No 76193 (Official Journal of the European Union L 83 3 April 1993 p 1) If there are differences of opinion between CPV and NACE NACE nomenclature shall apply

48

- shaft sinking comp 4525 - oil and gas field exploration geophysical geological and seismic surveying comp 7420

452 Building complete constructions or parts thereof

45200000

4521 Building work This four-digit level includes the following - Construction of all types of buildings - civil engineering and hydraulic engineering works - building of bridges including those for elevated highways metro tunnels - construction of long-distance pipelines communication cables and long-distance networks for power lines - construction of long-distance pipelines telecommunication ca-bles and municipal network power lines related installation work - on-site assembly and erection of pre-fabricated constructions This four-digit level excludes the following - services related to oil and gas extraction comp 1120 - erection of complete prefabricat-ed constructions from self-manufactured parts not of con-crete comp 20 26 28 - construction work other than buildings for stadiums swimming pools gymnasiums tennis courts golf courses and other sports installations comp 4523 building installation comp 453 - building completion comp 454 - architectural and engineering services comp 7420 - project management for construction comp 7420

45210000 Except 45213316 45220000 45231000 45232000

4522 Erection and covering of roofs

This four-digit level includes the following - erection of roofs - roof covering - waterproofing

45261000

49

4523 Construction of highways streets airports and sports equipment

This four-digit level includes the following - construction of highways streets other vehicular and pedestrian ways - construction of railways - construction of airfield runways - construction work other than build-ings for stadiums swimming pools gymnasiums tennis courts golf courses and other sports installations - painting of markings on road surfaces and car parks This four-digit level excludes the following - preliminary earth moving comp 4511

45212212 and DA03 45230000 except 45231000 45232000 45234115

4524 Construction of water projects

This four-digit level includes the following building works - construction of waterways harbour and river works marinas locks etc - construction of dams and breakwaters - dredging - subsurface work

45240000

4525 Other construction work

This four-digit level includes the following - construction activities specialising in one aspect common to different kinds of structures requiring specialised skill or equipment - construction of foundations including pile driving - water well drilling and construction shaft sinking - erection of non-self-manufactured steel frame elements - steel bending - bricklaying and stone setting - erecting and dismantling of scaffolds and work platforms including rental of scaffolds and work platforms - erection of chimneys and industrial ovens This four-digit level excludes the following - rental of scaffolds without erecting and dismantling comp 7132

45250000 45262000

453 Building installation 45300000

4531 Installation of electri-cal wiring and fittings

This four-digit level includes the installation in buildings or other

45213316 45310000

50

construction projects of - electrical wiring and fittings - telecommunications systems - electrical heating systems - residential antennas - fire alarms - burglar alarm systems - lifts and escalators - lightning conductors etc

Except 45316000

4532 Insulation work This four-digit level includes the following - installation in buildings or other construction projects of thermal sound or vibration insulation This four-digit level excludes the following - waterproofing comp 4522

45320000

4533 Plumbing This four-digit level includes the installation in buildings or other construction projects of the following - plumbing and sanitary equipment and fittings - gas fittings - heating ventilation refrigeration or air-conditioning equipment and ducts - sprinkler systems This four-digit level excludes the following - installation of electrical heating systems comp 4531

45330000

4534 Other installation work

This four-digit level includes the fol-lowing - installation or other construction of illumination and signalling systems for roads railways airports and harbours - installation in buildings or other construction projects of fittings and fixtures

45234115 45316000 45340000

454 Building completion 45400000

4541 Plastering This four-digit level includes the following - application in building or other construction projects of interior and exterior plaster or stucco and other similar lathing materials

45410000

4542 Joinery installation This four-digit level includes the following - installation of non-self-manufactured doors windows door

45420000

51

and window frames fitted kitchens staircases and shop fittings made of wood or other materials - completion of interiors such as ceilings wooden wall coverings wall paneling installation of movable partitions etc This four-digit level excludes the following - laying of parquet and other wooden floor coverings comp 4543

52

4543 Floor covering and wall upholstery

This four-digit level includes the following - covering or tiling of buildings or other structures using - ceramic concrete or stone wall or floor tiles or stones - parquet or other wooden floor covering - wall-to-wall carpeting or linoleum also rubber or plastic floor covering - wall or floor covering made of mosaic marble granite or slate - wallpaper

45430000

4544 Painting and glazing This four-digit level includes the following - interior and exterior painting of buildings - exterior painting of other structures - installation of mirrors glass etc This four-digit level excludes the following - installation of windows comp 4542

45440000

4545 Other building completion

This four-digit level includes the following - construction of private swimming pools - cleaning the exterior surfaces of buildings using steam sandblasting or other similar method - other building completion work not classified elsewhere This four-digit level excludes the following - cleaning of buildings and other structures comp 7470

45212212 and DA03 45450000

455 Rental of construction or dismantling equip-ment with operators

45500000

4550 Rental of construction or dismantling equip-ment with operators

This four-digit level excludes the following - rental of construction or dismantling machines and equipment without operators comp 7132

45500000

21

even later during the competition when the contracting authorityentity has been made aware

of the criterion for exclusion

Section 47

Exclusion from the competition of candidates and tenderers convicted of certain of-fences

The contracting authorityentity shall make a decision to exclude a candidate or tenderer from

the competitive bidding if it has become aware that the candidate or tenderer or director or

any person having powers of representation decision or control has been the subject of a con-

viction by judgment that has obtained the force of res judicata and is specified in a criminal record for one or more of the reasons listed below

1) participation in the activities of a criminal organisation as defined in Chapter 17 Section 1 a of the Criminal Code of Finland (391889)

2) bribery as defined in Chapter 16 Section 13 aggravated bribery as defined in Chapter 16

Section 14 or bribery in business as defined in Chapter 30 Section 7 of the Criminal Code of

Finland

3) tax fraud as defined in Chapter 29 Section 1 or aggravated tax fraud as defined in Chapter

29 Section 2 subsidy fraud as defined in Chapter 29 Section 5 aggravated subsidy fraud as

defined in Chapter 29 Section 6 subsidy misuse as defined in Chapter 29 Section 7 of the Criminal Code of Finland

4) an offence committed with terrorist intent as defined in Chapter 34 a Section 1 of the Crim-

inal Code of Finland preparations for an offence to be committed with terrorist intent as de-

fined in Section 2 leading a terrorist group as defined in Section 3 advancing the activities of

a terrorist group as defined in Section 4 providing training for the purpose of committing a

terrorist offence as defined in Section 4 a recruitment for the purpose of committing a terror-

ist offence as defined in Section 4 b and instigation aiding and abetting or attempt to com-mit the offences mentioned above

5) money laundering as defined in Chapter 32 Section 6 aggravated money laundering as

defined in Section 7 or financing terrorism as defined in Chapter 34 a Section 5 of the Crimi-

nal Code of Finland or

6) work discrimination through undue influence as defined in Chapter 47 Section 3 a of the

Criminal Code

A candidate or tenderer convicted to pay a corporate fine referred to in Chapter 9 of the Crimi-nal Code shall also be excluded from the competitive bidding

The contracting authorityentity shall exclude a candidate or tenderer from the competitive

bidding if the candidate or tenderer has been the subject of a conviction by judgment that has

the force of res judicata in another state for reasons analogous to those mentioned in subsec-

tion 1 In a European Union member state the provisions shall apply to the following crimes defined in European Union Law

1) participation in a criminal organisation as defined in Article 2(1) of the Council Joint Action

98773JHA on making it a criminal offence to participate in a criminal organisation in the

member states of the European Union

2) corruption as defined in Article 3 of the Council Act of 26 May 1997 drawing up on the ba-

sis of Article K3(2)(c) of the Treaty on European Union the Convention on the fight against

corruption involving officials of the European Communities or officials of member states of the

European Union and Article 2(1)(a) of the Council Framework Decision 2003568JHA on com-

bating corruption in the private sector

3) fraud within the meaning of Article 1 of the Convention relating to the protection of the fi-nancial interests of the European Communities

4) a terrorist offence as defined in Article 1 of the Council Framework Decision 2002475JHA

an offence associated with terrorist activities as defined in Article 3 or instigation aiding and abetting or attempt as defined in Article 4 and

22

5) money laundering as defined in Article 1 of Council Directive 91308EEC on prevention of

the use of the financial system for the purpose of money laundering or financing of terrorism

A derogation from the requirement to exclude from the participation in competitive bidding a

candidate or tenderer who has been the subject of a conviction for a reason referred to in this

Section may be provided for overriding requirements in the general interest or subject to the

condition that the convicted person no longer holds a responsible position in the undertaking submitting the tender

Section 48

Other criteria for exclusion

The contracting authorityentity may make the decision to exclude from participation in com-petitive bidding a candidate or tenderer which

1) is bankrupt or is being wound up or has ceased operations where it has entered into an

arrangement with creditors or a reorganisation plan or is in an analogous situation arising from a similar procedure under the law

2) is the subject of proceedings for declaration of bankruptcy for an order for compulsory

winding up or of proceedings for other procedures referred to in point 1

3) has been convicted by judgment that has the force of res judicata of any offence concerning hisher professional conduct such as breaching the obligations concerning export control

4) has been guilty of grave professional misconduct such as breaching its obligations concern-

ing information security and security of supply or a similar offence in association with a previ-ous contract which the contracting authorityentity can prove

5) whose reliability has been proven to be inadequate to the degree where a risk to national

security cannot be excluded

6) has not fulfilled obligations to pay taxes or social security contributions in Finland or in the

country in which it is established or

7) is guilty of serious misrepresentation in supplying the information to the contracting au-

thorityentity required to apply the provisions of this Chapter or has neglected to provide the required information

The provisions laid down in subsection 1 points 3 and 4 shall apply in cases where the person

guilty of a mistake or negligence is a director or any person having powers of representation

decision or control in respect of the candidate or tenderer The decision on the exclusion may

take account of other matters such as the seriousness of the offence or omission the connec-

tion with the object of the contract the time lapsed any other implications of the offence and

any remedial action taken by the person convicted of the offence or omission

Section 49

Verification of the criteria for exclusion

The contracting authorityentity may request that the candidates and tenderers and the com-

petent authorities of other European Union member states in accordance with the appropriate

regulations submit evidence and clarifications in order to verify whether the exclusion criterion referred to in Section 47 or 48 applies to the candidate or tenderer

As regards Section 47 and Section 48(1)(3) the contracting authorityentity shall accept as

evidence an extract from the criminal record issued by a competent authority in the country in

which the tenderer is established As regards Section 48(1)(2 6) a certificate issued by the competent authority shall also be accepted as evidence

Where the country in which the candidate or tenderer is established does not issue such ex-

tracts or documents they may be replaced by a declaration on oath or by a solemn declaration

under the law of the country in which the representative of the candidate or tenderer is estab-

lished

23

Section 50

Requirements and references relating to the suitability of candidates and tenderers

The contracting authorityentity may set requirements relating to the candidates or tenderers

financial and economic standing technical capacity professional ability information security

security of supply and requirements concerning quality and request that the candidates and tenderers submit the related reports

In order to verify the requirements and that the requirements are satisfied the references re-

quested shall be related to the candidates or tenderers ability to perform the contract and

they shall be in proportion to the subject matter purpose and scope of the contract Require-

ments and references shall be indicated in the contract notice Candidates or tenderers failing

to satisfy the minimum requirements set by the contracting authorityentity shall be excluded from participation in the competitive bidding

The contracting authorityentity shall indicate in the contract notice any objective and non-

discriminatory criteria and rules which it shall apply in restricted procedures negotiated pro-

cedures or in the competitive dialogue procedure to admit candidates or tenderers to the com-

petitive bidding or negotiations The contracting authorityentity shall state the minimum

number of candidates and where appropriate also the maximum number of candidates

The contracting authorityentity may invite candidates or tenderers to supplement or clarify

the references and other documents

Section 51

Register data

The contracting authorityentity may request that the candidate or tenderer prove under the law of the country in which it is established that

1) it is registered in a professional or trade register

2) it carries out a trade by providing a declaration on oath or certificate and

3) it is entitled to provide a service in the country in which it is established by providing a li-cense or a certificate of membership of an organisation

Section 52

Economic and financial standing

The contracting authorityentity may request that a candidate or tenderer furnish proof of its financial and economic standing by references such as

1) a statement from a bank or credit institution or evidence of professional risk indemnity in-surance

2) a profit and loss account balance sheet annual report financial statements and group fi-

nancial statements if these must be published in the country in which the candidate or ten-

derer is established and

3) a statement of the undertakings overall turnover and turnover in the area that is the object

of the contract for a maximum of the three most recent fiscal periods if information on these turnovers is available

If for any valid reason the candidate or tenderer is unable to provide the documents request-

ed by the contracting authorityentity it may demonstrate its economic and financial standing

by any other document which the contracting authorityentity considers appropriate

24

Section 53

Technical capacity and professional ability

The contracting authorityentity may request that the candidate or tenderer furnish proof of its

technical capacity and professional ability by the following documents

1) the educational and professional qualifications of the candidate or tenderer or those of the

management of the undertaking and in particular those of the persons responsible for man-

aging the work or providing services or products that involve siting or installation functions or services

2) a list of the works carried out over a period not exceeding the past five years accompanied

by a certificate of satisfactory execution of the most important works the certificate shall indi-

cate the value date and site of the works and shall specify whether they were carried out ac-

cording to the rules of the trade and properly completed where appropriate a competent au-thority shall submit these certificates to the contracting authorityentity directly

3) a list of the principal deliveries carried out or the main services provided over a period not

exceeding the past five years with the sums dates and recipients involved where the recipi-

ent was a public body the list shall be verified by the competent authority where the recipient

was a private purchaser by the purchasers certification or failing this by a declaration of the

candidate or tenderer

4) an indication of the technical experts or bodies involved whether or not they belong directly

to the candidate or tenderer especially those responsible for quality control and in the case of

public works contracts those experts and bodies upon whom the contractor can call in order to carry out the work

5) the candidates or tenderers description of the tools equipment and actions by which it

ensures quality as well as the research and testing equipment required to implement the con-tract and the internal rules regarding industrial property and copyrights

6) a certificate for the inspection carried out by the candidate or tenderer or on its behalf by a

competent official body of the country in which the candidate or tenderer is established regard-

ing the candidatersquos or tendererrsquos production capacities technical capacity research or trial sys-

tems or quality control measures which it will implement

7) a statement of the average annual manpower of the service provider or contractor and the number of managerial staff for the last three years as a maximum

8) a statement of the tools fixtures technical equipment number of personnel know-how and

sources available to the service provider or tenderer for carrying out the contract for fulfilling

the additional needs that may arise from any crisis that the contracting authorityentity may

undergo or for the maintenance modernisation or adaptation of the products that are the ob-

ject of the contract in addition information on the geographic location of the tools fixtures

technical equipment number of personnel know-how and sources in the event that these are located outside of the European Union

9) with regard to the products to be supplied samples descriptions and photographs the au-

thenticity of which must be certified if the contracting authorityentity so requests and certifi-

cates drawn up by an official quality control institute or agencies of recognised competence

attesting to the conformity of the products to be supplied with technical specifications or standards and

10) with regard to public contracts having as their object supplies requiring a service or siting

or installation work an indication of professional ability efficiency experience and reliability

If appropriate to the object of the contract the contracting authorityentity may request that

the candidate or tenderer provide an indication of the environmental management measures to

be applied when performing a public works or service contract Should the contracting authori-

tyentity require the production of certificates drawn up by independent bodies attesting the

compliance of the tenderer with environmental management standards it shall refer to the

Community eco management and audit scheme (EMAS) or to the environmental management

standards based on relevant European or international standards certified by bodies conform-

25

ing to Community law or relevant European or international standards concerning certification

The contracting authorityentity shall accept equivalent certificates from bodies established in

other European Union member states and other evidence of equivalent environmental man-agement measures from the suppliers

If appropriate to the object of the contract the contracting authorityentity may request that

the candidate or tenderer provide an indication of the quality assurance measures Should the

contracting authorityentity require the production of certificates drawn up by independent

bodies attesting to the compliance of the tenderer with quality assurance standards the con-

tracting authorityentity shall refer to quality assurance systems based on relevant European

standards series certified by bodies conforming to the European standards series concerning

certification The contracting authorityentity shall accept equivalent certificates from bodies

established in other European Union member states and other evidence of equivalent quality assurance measures from the tenderers

If for any valid reason the candidate or tenderer is unable to provide the documents request-

ed by the contracting authorityentity it may demonstrate its economic and financial standing by any other document which the contracting authorityentity considers appropriate

Section 54

Requirements on information security set for candidates and tenderers

If classified documents are submitted drawn up or otherwise dealt with to carry out a call for

tender the contracting authorityentity may set requirements for candidates or tenderers to

meet the information security requirements laid down for authorities The contracting authori-

tyentity may request candidates or tenderers to provide commitments or information which

prove their capacity to meet the information security requirements

For candidates who have not obtained the certificate or commitment referred to in Section 1

the contracting authorityentity may grant additional time to obtain the certificate or commit-

ment In that case a deadline shall be set for the delivery of these In addition to the com-

mitments and information provided by the candidate the contracting authorityentity may render and consider any supplemental investigations it has conducted

Section 55

Legal form of the candidate and the tenderer and indication of the responsible per-sons

A candidate or tenderer which under the legislation of the country in which it is established is

entitled to provide the services that are the object of the contract may not be rejected solely

on the ground that under the legislation of the European Union member state in which the contract is awarded it would be required to be either a natural or legal person

In the case of public service and public works contracts as well as public supply contracts in-

volving siting and installation operations the contracting authorityentity may require candi-

dates and tenderers to indicate in the tender or the request to participate the names and pro-

fessional qualifications of the persons responsible for carrying out the services or the work in question

Section 56

Groups participating in the competitive bidding and reliance on the capacities of oth-er entities

Groups of suppliers may submit tenders or put themselves forward as candidates The con-

tracting authorityentity may not require these groups of candidates or tenderers to assume a

specific legal form in order to submit a tender or a request to participate However the group

may be required to do so during the term of the contract to the extent that this change is necessary for the satisfactory performance of the contract

26

A candidate or tenderer may rely on the capacities of other entities regardless of the legal na-

ture of the links it has with them to carry out the contract A group may rely on the abilities of

participants in the group or in other entities in order to perform the contract The candidate or

tenderer or a group thereof shall furnish the contracting authorityentity with proof that the

requirements relating to economic and financial standing technical capacity and professional

ability and other requirements are satisfied This proof may include contracts between compa-

nies or other binding documents demonstrating that the capacities to satisfy the requirements are accessible by the candidates or tenderers

Section 57

Selecting the tender

The contract awarded shall be either the economically most advantageous tender from the

point of view of the contracting authorityentity in accordance with the comparison criteria

linked to the object of the contract or the lowest in price When the award is made to the eco-

nomically most advantageous tender the criteria may include for example quality price

technical merit aesthetic and functional characteristics environmentally friendly characteris-

tics running costs costs associated with a long life cycle cost effectiveness after-sales ser-

vice and technical assistance delivery date delivery period and period of completion security of supply and interoperability and functional characteristics

The contracting authorityentity shall specify in the contract notice or the invitation to tender

documentation the comparison criteria and the relative weighting which it gives to each of the

criteria chosen to determine the economically most advantageous tender In the competitive

dialogue procedure the equivalent information shall be specified in the contract notice or the

project description The weighting may also be specified by indicating a reasonable range If it

is not reasonably possible to specify the relative weighting of the comparison criteria they

shall be specified in the order of importance

Section 58

Abnormally low tenders

The contracting authorityentity may reject tenders that are abnormally low in relation to the

quality and scope of the contract Before it may reject a tender the contracting authori-

tyentity shall request in writing a written report from the tenderer on the constituent ele-ments of the tender

The request referred to in subsection 1 may relate in particular to the economic and technical

solutions chosen for the manufacture of the goods supply of the service or execution of the

work exceptionally favourable conditions for the execution of the contract the originality of

the proposed solution employment protection at the place where the contract is executed and

compliance with the provisions relating to working conditions or the possibility of the tenderer

receiving state aid The contracting authorityentity shall verify the constituent elements of the tender taking into account the evidence supplied

The contracting authorityentity may reject a tender which is abnormally low in price because

the tenderer has obtained state aid illegally The tender can be rejected only after a sufficient

time limit has been fixed for the tenderer to prove that the state aid in question was granted

legally If the contracting authorityentity rejects the tender because of illegal state aid it shall report the matter to the European Commission

Section 59

Taking account of a subsidy awarded by the contracting authorityentity in the com-parison of tenders

If the tenderer is an entity belonging to the contracting authorityentitys organisation or if the

contracting authorityentity has granted or will grant the tenderer a financial subsidy which will

affect the price of the tender in the comparison of the tenders the contracting authorityentity

27

shall take into account the factors which will genuinely affect the price of the tender paid by

the contracting authorityentity such as the financial subsidy in question

Chapter 9 Subcontract agreements

Section 60

Subcontracts with related companies

The contracting authorityentity may request the tenderer to state in its tender which part of

the contract it plans to award as a subcontract to related companies and to list these compa-

nies The contracting authorityentity may also request tenderers submitting tenders as a

group as defined in Section 56 to indicate in their tender which part of the contract they plan

to award as a subcontract to their related companies and to list these companies If the rela-

tionships between the companies change during the procurement procedure the tenderer shall update the information included in its tender

A related company means a company which is under the direct or indirect control of the ten-

derer or which has direct or indirect control of the tenderer or which jointly with the tenderer

is under the control of another company on the basis of ownership financial contribution or the

regulations under which the company operates A company is considered to have control of

another company when it owns the majority of that companys unrestricted shareholder equity

controls the majority of the companys shareholders voting rights or may appoint half of the

members of the companys administrative managerial or supervisory body

The provisions of Sections 62-66 of this Act concerning subcontracting agreements are not

applicable to subcontracting agreements which the tenderer has entered into with a related

company or when the tender has been submitted by a group as defined in Section 56 to a

company belonging to the same group or a company which is a related company of a company

belonging to the group

Section 61

Selecting a subcontractor

The tenderer may select its subcontractors in all subcontracting agreements unless otherwise prescribed in Sections 62ndash66 of this Act

Section 62

Requirements concerning subcontracting agreements

The contracting authorityentity shall define the requirements for a subcontracting agreement

in the contract notice and further specify them in the invitation to tender In defining the re-

quirements for subcontracting agreements the principles of proportionality and non-discrimination must be complied with

The contracting authorityentity may require that the tenderer state in the tender which part

or parts of the contract it plans to subcontract to third parties the content of the subcontract-ing agreement and the chosen subcontractors shall also be stated

In addition to the provisions of subsection 2 the contracting authorityentity may require that

the tenderer selected as a contracting party shall

1) in accordance with the procedures laid down in Sections 64ndash66 of this Act invite bids on

part or all of the subcontracts included in the tender and stated in the notice in accordance with subsection 2 or

2) award the minimum amount of the contract value as defined by the contracting authori-

tyentity to third parties as subcontracts and invite bids on these subcontracts in accordance

with the procedures laid down in Sections 64ndash66 of this Act The contracting authorityentity

shall in that case define as percentages the minimum and maximum amount the tenderer shall

award to third parties as subcontracts and require that the tenderer state in its tender which

28

part or parts of the contract it plans to award to third parties as subcontracts in order to fulfil

the requirement of the contracting authorityentity The maximum amount defined by the con-tracting authorityentity shall not exceed 30 percent of the value of the contract or

3) invite bids on a part or parts of the subcontracts which it plans to award to third parties in

addition to the subcontracts mentioned in point 2 above In that case the contracting authori-

tyentity shall require that the tenderer specify in its tender those parts of the contract which it

plans to award as subcontracts to third parties in addition to the subcontracts mentioned in point 2 above

In addition to the provisions of subsections 2 and 3 the contracting authorityentity may re-

quire that the tenderer report any changes occurring at the subcontractor level during the im-

plementation of the contract

The contracting authorityentity shall set the maximum and minimum amount as defined in

subsection 3 point 2 having regard to the object and value of the contract and the character of the industry sector in question the competitive situation and technical capacity

The tenderer has the right to award more subcontracts to third parties than required by the contracting authorityentity in accordance with this Section

Section 63

Rejecting a subcontractor

The contracting authorityentity may specify requirements concerning the subcontractors fi-

nancial and economic situation technical capacity and professional competence information

security security of supply or quality These as well as other requirements concerning the

suitability of the subcontractor shall be stated in the contract notice These requirements shall

be equitable and non-discriminatory and conform to the requirements set in the invitation to tender concerning the suitability of the candidate or tenderer

The contracting authorityentity may decide to reject a subcontractor selected by the tenderer

during the contract procedure or the implementation of the contract if the subcontractor does

not meet the requirements set in the contract notice concerning the suitability of the subcon-

tractor or the exclusion criterion laid down in Section 47 or Section 48 applies to the subcon-

tractor The contracting authorityentity shall justify the rejection in writing to the tenderer

Section 64

Implementation of subcontracts

A tenderer selected as a contracting party shall act openly and treat any and all subcontractors

equally and in a non-discriminatory manner

A tenderer selected as a contracting party shall provide for the publication a subcontract notice

concerning those subcontracts to which the bidding obligation laid down in Section 62(3) ap-

plies and whose estimated value without value added tax exceeds the EU thresholds men-

tioned in Section 12 The notice obligation shall not apply to a subcontract which fulfills the

requirement set for a direct contract award mentioned in Sections 22ndash23 The provisions of

Sections 14ndash16 shall apply to the calculation of the estimated value of subcontracts

The tenderer selected as the contracting party shall specify in the subcontract notice the crite-

ria which the tenderer will apply in assessing the suitability of the subcontractors and in select-

ing them These criteria shall be equitable and non-discriminatory and conform to the criteria

that the contracting authorityentity applies in assessing the suitability of the tenderers The

requirements shall be related to the object of the subcontract and be proportional to the scope

of the subcontract

A tenderer selected as a contracting party may publish a subcontract notice also concerning

those subcontracts which meet the criteria for the subcontracts referred to in Sections 22ndash23

29

Section 65

Exemption from an obligation related to subcontracting

A tenderer selected as a contracting party may not be required to enter into a subcontract if it

indicates in a manner satisfactory to the contracting authorityentity that none of the subcon-

tractors that participated in the competition or none of their tenders fulfil the requirements

set in the subcontract notice and therefore the tenderer selected as a contracting party could

not fulfil the contract requirements

Section 66

Framework agreements

The provisions of Section 62 shall not apply to subcontracts awarded by the tenderer selected

as a contracting party if the framework agreement was put out to tender in accordance with

the provisions of Section 64

Subcontracts based on a framework agreement shall be awarded in accordance with the condi-

tions confirmed in the framework agreement and concluded between the original participants

to the framework agreement Conditions analogous to those of the framework agreement shall be complied with in subcontracting agreements

The framework agreement may not be used in such a way as to distort restrict or prevent

competition

The term of the framework agreement may not exceed seven years In exceptional cases the

framework agreement may be longer in duration when duly justified by the expected life cycle

of the supplies equipment and systems delivered and the technical problems that might re-

sult from the change of supplier

Section 67

The responsibility of the tenderer for carrying out the contract

The requirements set by the contracting authorityentity on the basis of this Chapter and the

notices issued by the tenderers based on them do not limit the responsibility of the tenderer

selected as a contracting party to carry out the contract PART III

National procedures

Chapter 10 Tendering procedures for contracts below the EU threshold for second-

ary service contracts referred to in Annex B and for certain other contracts

Section 68

Contract award procedures

The contract award procedures specified in this Chapter may be used for service contracts

public works contracts and the service contracts referred to in Annex A which are below the EU

threshold referred to in Section 12(1) but above the national threshold referred to in Section

13(1) and for secondary service contracts referred to in Annex B which are above the national

threshold referred to in Section 13(1)

The procedures laid down in this Chapter may also be used for defence contracts referred to in

Section 5 when the value of the defence contracts exceed the national threshold as referred to

in Section 13 provided that the criteria set in Article 346(1)(b) of TFEU are fulfilled

30

Section 69

General rules of procedure

The contracting authorityentity shall aim to take advantage of the prevailing competitive con-

ditions and award the contract primarily through competitive bidding A sufficient number of

tenders shall be requested in terms of the scope and subject matter of the contract to ensure

competition

A public notice shall be issued however the publication obligation does not apply in the case

of contracts that fulfil the criteria set in Article 346(1)(b) of TFEU

The contracting authorityentity may request a tender directly from one supplier if competitive

bidding cannot be carried out for reasons justified on the basis of national defence state secu-rity or security of supply

The contracting authorityentity may also request a tender directly from one supplier if

1) no tenders or no suitable tenders were received in the competitive bidding carried out

previously a further requirement is that the conditions of the original invitation to ten-

der are not fundamentally changed

2) for technical reasons or for reasons connected with the protection of exclusive rights the contract may be awarded only to a particular supplier

3) for reasons of urgency brought about by a crisis it is not possible to carry out competi-tive bidding

4) execution of the contract is absolutely necessary and competitive bidding cannot be

carried out for reasons of extreme urgency brought about by events unforeseeable by

and independent of the contracting authorityentity

5) the product to be acquired are manufactured purely for scientific or research purposes

and it is not a matter of establishing commercial viability of the products or to recover research and development costs

6) the object of the contract is a research and development service that has not been ex-cluded from the scope of this Act on the basis of Section 8

7) the contract is necessary in order to determine whether the final result of the research

and development service is suitable to be used as intended by the contracting authori-tyentity

8) the object of the contract consists of supplies quoted and purchased on a commodity market

9) the supplies are purchased on particularly advantageous terms from either a supplier

winding up its business activities or from the receivers of a bankruptcy or liquidators in

insolvency proceedings an arrangement with creditors or a similar procedure

10) the object of the contract is a second-hand product

11) the object of the contract is based on a supplementary contract right incorporated into

the contract

12) the object of the contract is additional deliveries by the original supplier which are in-

tended either as a partial replacement of existing supplies or installations or as the ex-

tension of existing supplies or installations and a change of supplier would result in in-

compatibility or disproportionate technical difficulties in operation and maintenance

13) the object of the contract is additional works or services not included in the project ini-

tially but which have through unforeseen circumstances become necessary for the per-

formance of the works or services as originally described

31

Section 70

Negotiations with tenderers and specifying the tender and the invitation to tender

The contracting authorityentity may discuss all aspects of the contract with the tenderers dur-

ing the negotiation provided that the negotiations do not result in changing constituent ele-

ments in the invitation to tender in a discriminating manner or in a manner which distorts

competition

The purpose of the negotiations shall be to select the best tender in accordance with Section

73(2) or to determine one or more alternative solutions for contract implementation before

sending the final invitation to tender The dialogue may take place in successive stages in or-

der to reduce the number of tenders or solutions to be discussed during the dialogue by apply-

ing the comparison criteria indicated in the invitation to tender or project description

In competitive bidding the requirement for negotiations shall be that the negotiations and the

criteria to be complied with during the negotiations have been stated in the invitation to tender

or the project description

The contracting authorityentity shall ensure equal treatment of all candidates and tenderers

during the negotiations and shall not provide information in a manner that may compromise

the equal treatment of the participants in competitive bidding

Section 71

Invitation to tender

The invitation to tender shall be submitted in writing and drawn up to be sufficiently clear in

order to enable submission of commensurate and mutually comparable tenders The invitation

to tender shall contain all information that is particularly important in terms of the contracting

procedure and submitting the tender

The invitation to tender shall include the award criterion and where the criterion for the award is that of the economically most advantageous tender the comparison criteria and the ranking thereof The invitation to tender shall indicate a reasonable time allotted for the tenderers to submit a tender taking into consideration the scope and subject matter of the contract

The contracting authorityentity may charge a reasonable fee for the invitation-to-tender doc-

uments to recover the costs arising from the exceptionally extensive scope of the documenta-

tion the materials related thereto or other similar factors

Section 72

Drawing up the invitation to tender and submitting the tender

The invitation to tender and the tenders based thereon shall be drawn up in writing They may be executed orally only in exceptional circumstances if the written procedure is justifiably not appropriate If the invitation to tender or the tenders are not drawn up in writing a record shall be kept of the negotiations held with the tenderers the record shall indicate the infor-mation impacting the course of the procedure and the position of the tenderers

Section 73

Selection of a tender and a tenderer rejecting a tender

The contracting authorityentity may exclude from the competitive bidding any supplier which

taking into consideration the scope and object of the contract and other criteria does not pos-

sess the qualifications to carry out the contract The contracting authorityentity may exclude

32

from the competitive bidding any tender submitted by a tenderer who does not possess the

qualifications to carry out the contract when taking into consideration the scope and object of

the contract and other criteria

The contracting authorityentity shall award the contract to the tenderer whose tender has the

lowest price or complies with the comparison criteria set in the invitation to tender and is eco-

nomically the most advantageous

The contracting authorityentity may reject a tender which does not fulfil the essential condi-

tions set in the invitation to tender or has an abnormally low price in terms of the subject mat-

ter and scope of the contract Before it may reject a tender the contracting authorityentity

shall request in writing details of the constituent elements of a tender that is abnormally low in

price

PART IV

General provisions on decisions concerning contract awards conclusion of contracts

procurement rectification public access to the contract documents and further provi-sions

Chapter 11

Decisions concerning the award of contracts and notification thereof

Section 74

Decision concerning the award

The contracting authorityentity shall provide in writing the decisions affecting the position of

the candidates and tenderers and the results of the tendering procedure including the grounds for the outcome of the procedure

The decision or the related documentation shall state the factors that fundamentally affected

the outcome including the grounds for rejecting the candidate tenderer or tender and the

grounds on which the accepted contracts were compared As regards a decision concerning

asking for bids for a contract based on a framework arrangement stating the facts showing

that the selection and award criteria have been applied as required under Section 27 shall

suffice If the standstill period referred to in Section 79 applies to the contract the decision or

the related documents shall also state the period of time after which the contract may be awarded

The contracting authorityentity is not required to make a decision referred to in this Section

concerning a contract for the additional supplies referred to in Section 23 or Section 69(4)(12)

and additional service or contract referred to in (13) or the temporary arrangements for a con-tract referred to in Section 95

In contracts based on framework agreements the contracting authorityentity is not required to make the decision referred to in this Section if

1) the contract is awarded in accordance with the conditions laid down in the framework

agreement without asking for bids or

2) the competitive bidding is based on a framework agreement when the value of the contract

does not exceed the EU threshold

33

Section 75

Suspending the contract award procedure

The contract award procedure can be suspended only for verifiable and justifiable reason

The provisions of Section 74 concerning contract ruling shall apply to the suspension of the

contract award procedure

Section 76

Appeal instructions and instructions for request for rectification

Instructions for appeal shall accompany the decisions made by the contracting authori-

tyentity explaining how to refer a case to the Market Court for consideration contact infor-

mation of the contracting authorityentity for the notice referred to in Section 90 and instruc-

tions for seeking rectification (petition instructions) explaining how the candidate or tenderer can have the case submitted for reconsideration through procurement rectification

With regard to the issuing and amending appeal and petition instructions the provisions of

Chapter 3 of the Administrative Judicial Procedure Act (5861996) shall apply in terms of ap-

peals and the provisions of Chapter 7 of the Administrative Procedure Act (4342003) shall

apply in terms of petition instructions

Section 77

Notification of the decision concerning the contract award

The decision of the contracting authorityentity including the grounds for the decision and the

appeal and petition instructions shall be submitted in writing to the parties concerned The de-

cision including the aforementioned documents shall be submitted using the electronic con-

tact information which the candidate or tenderer has given to the contracting authorityentity

When using the electronic contact information the candidate and tenderer shall be considered

to have received notice of the decision and the accompanying documents on the date on

which the electronic message containing the aforementioned documents is available in the re-

cipients reception equipment such that the message can be handled Such a point in time shall

mean the date on which the message was sent unless a reliable explanation concerning the

malfunction of telecommunications links or another analogous reason because of which the

electronic message reached the recipient later When electronic notification is used the con-

tracting authorityentity shall include in the message a separate note concerning the date

when the message was sent

The decision including the grounds for it and the appeal and petition instructions may also be

sent via regular mail under the Administrative Procedure Act Candidates and tenderers shall

be considered to have received notification of the decision and the accompanying documents

on the seventh day from the date on which they were sent unless the candidate or tenderer

proves that the notification occurred at a later date

Notification on the decision of the contracting authorityentity shall be issued without undue

delay at the latest 15 days from the date on which the contracting authorityentity receives a written request concerning notification on the decision that was made

34

Chapter 12

Public contract

Section 78

Concluding a public contract

Having made the decision to award a public contract the contracting authorityentity shall

conclude the contract The contract is concluded upon signing a written agreement

Section 79

Standstill period

In the case of a contract above the EU threshold referred to Section 12 above the contract can

be concluded at the earliest 21 days from the date when the candidate or tenderer received or is considered to have received the decision and instructions for appeal (standstill period)

A standstill period shall not be applied in direct contract awards

The provisions of Section 92 shall apply to the effect of an appeal on concluding a contract

Section 80

Exceptions to the compliance with the standstill period

The standstill period need not be upheld if

1) the contract concerns a procurement carried out on the basis of the framework agreement in accordance with Section 27

2) the contract is awarded to the tenderer who submitted the only acceptable tender and no

other tenderers or candidates remain in the competitive bidding whose position would be af-

fected by the selection of a co-contractor

3) the contract concerns a procurement referred to in Section 68(2)

Section 81

Notification of direct awards and conclusion of public contracts

In direct awards exceeding the EU threshold the contracting authorityentity may after hav-

ing made the award decision send a notice for publication concerning the direct award of con-

tract before concluding the contract In that case the contract can be concluded at the earli-est 14 days after the publication of the notice in the Official Journal of the European Union

Chapter 13

Procurement rectification

Section 82

Rectification of a procurement

The contracting authorityentity may remove an incorrect decision or annul an award decision

made during the contracting procedure concerning the legal status of the candidates or ten-

35

derers and make a new decision (procurement rectification) if the award decision or other deci-

sion reached during the contracting procedure is based on an error that occurred in the appli-cation of the law

Amending an award decision or other decision does not require the consent of the party con-

cerned However an award decision or other decision cannot be amended through procure-

ment rectification if the contract has been concluded

Section 83

Initiation of procurement rectification

The contracting authorityentity may take up a procurement rectification on its own initiative

or in response to a demand of the party in question The contracting authorityentity shall noti-fy the concerned parties immediately of the initiation of a procurement rectification

A subcontractor does not have the status of a concerned party referred to in subsection 1 of this section in terms of the matter concerning the contract

The concerned party shall present the demand within 14 days after receipt of the notification

of the award decision or other decision made by the contracting authorityentity during the

contracting procedure The contracting authorityentity itself may amend the award decision or

other decision no later than 60 days after the date the decision concerning the procurement rectification is made

Appealing the case to the Market Court does not prevent a procurement rectification or its pro-

cessing A procurement rectification may also apply to a decision of the contracting authori-

tyentity that has become legally binding if the case has not been submitted to the Market

Court for ruling

Section 84

Effect of the processing of procurement rectification on the proceedings in the Mar-ket Court

The initiation and processing of a procurement rectification do not affect the time limit within

which the concerned party has the right pursuant to this Act to submit an appeal against the

decision to the Market Court

If the award decision or other decision that was reached during the contract award procedure

is to be amended and has been appealed against before the Market Court the Market Court

shall be notified of the processing of the case through procurement rectification and informed

of the decision reached In processing a procurement rectification the contracting authori-

tyentity may prohibit the enforcement of the award decision or other decision or order it to be

suspended The Market Court shall be notified of a prohibition or suspension of enforcement if an appeal has been lodged against the decision in the Market Court

If the contracting authorityentity amends its award decision or other decision by means of a

procurement rectification such that as a result the appellant to the Market Court no longer has

the need for judicial relief or the need for a justified decision the Market Court may decline to

process such a case without giving a ruling on the principal claim

Section 85

The application of procurement rectification to other contracts

A procurement rectification can also be applied to amend an award decision or other decision

made by the contracting authorityentity during the contracting procedure to which this Act

36

shall not apply pursuant to Section 6(2) and Sections 7 8 or 13 A decision made on account

of such a contract rectification may not be appealed against in the Market Court or under the Administrative Judicial Procedure Act or Local Government (Act 3651995)

Chapter 14

Public access to the contract documents

Section 86

Application of the provisions concerning public access to the contract documents

The Act on the Openness of Government Activities (6211999) shall apply to public access to

the documents of the contracting authorityentity and the fees charged for the documents if

the contracting authorityentity is the authority referred to in Section 4 of the aforementioned

Act or if it is obliged to comply with that Act on the basis of a provision contained elsewhere in the Act

In terms of the right of parties other than the participants in the competitive bidding conducted

by the contracting authorityentity referred to in subsection 1 to have access to the docu-

ments drawn up and received for processing of the tender and the confidentiality obligation of

those employed by the contracting authorityentity the provisions of the Act on the Openness

of Government Activities shall apply to the right of concerned parties to have access to the

document to how public access to the document is determined and to the processing and resolving of the matter concerning access to information

The decision of the contracting authorityentity which has resolved the matter concerning ac-

cess to information can be appealed in accordance with the provisions of Section 33 of the Act

on the Openness of Government Activities The Supreme Administrative Court in whose judicial

district the contracting authorityentity is located is the competent Supreme Administrative

Court for considering the appeal submitted on the basis of a decision made by a party other

than the contracting authorityentity acting as an authority

Chapter 15

Appealing and the implications thereof

Section 87

Parties entitled to appeal

A concerned party may appeal the matter to the Market Court by issuing a complaint A sub-

contractor does not have the position of an interested party referred to in subsection 1 of this Section in terms of the matter concerning the contract

In matters concerning control procedures of the European Union the Ministry of Economic Af-

fairs and Employment may also refer the matter to the Market Court for consideration

Section 88

Object of the appeal

An appeal may be lodged before the Market Court against an award decision of the contracting

authorityentity referred to in this Act or other decision reached by the contracting authori-

tyentity during the contracting procedure which affects the status of the candidate or the ten-derer

37

An appeal may not be lodged before the Market Court against an award decision or other deci-

sion of the contracting authorityentity which concerns only the preparation of the contracting

procedure An appeal may not be lodged against a decision or other measure taken by the

supplier selected as a contracting party concerning a subcontracting agreement or an award

decision or determination made by the contracting authorityentity during the implementation of the contract

A contract based on a framework agreement referred to in Section 27 above and a contract

referred to in Section 68(2) may not be appealed unless a processing authorisation is issued by the Market Court The authorisation shall be issued if

1) the processing of the case is important in terms of applying the Act in other similar matters

or

2) there is a cogent reason for it related to the procedures of the contracting authorityentity

Section 89

Time period for appeal

Unless otherwise prescribed in this Section an appeal must be lodged in writing within 14 days

from the date when the candidate or tenderer received the notice concerning the contract with the instructions for appeal

If the contracting authorityentity has concluded a public contract after the contract decision

was issued on the basis of Section 80 point 1 without complying with the standstill period

the appeal shall be lodged within 30 days from the date when the tenderer has received notice

of the decision with the instructions for appeal

An appeal before the Market Court shall be lodged within six months of the date of the contract

decision provided that the candidate or tenderer has received notice of the contract decision

and the contract decision or appeal instructions were materially deficient or the appeal instruc-tions have been missing altogether

If the contracting authorityentity has with regard to a contract above the EU threshold re-

ferred to in Section 12 above delivered a notice regarding a direct award of contract for publi-

cation in the Official journal of the European Union the complaint must be lodged within 14 days from the publication of the notice

If the notice referred to in subsection 4 has not been published the appeal concerning a direct award of contract shall be lodged

1) within 30 days of the date of publication of a contract-award notice has been published in

the Official Journal of the European Union or

2) within six months from the conclusion of the contract at the latest

Section 90

Notification of appeal to the contracting authorityentity and the list of procurement

cases

The appellant in a contract-related matter must notify the contracting authorityentity in writ-ing of referring the case to the Market Court for consideration

The notification must be delivered to the contracting authorityentity at the latest when the

complaint concerning the contract is delivered to the Market Court The notification shall be delivered to the address provided by the contracting authorityentity

38

The Market Court shall maintain and publish a list which is as comprehensive and up-to-date

as possible of contract-related matters pending at the Market Court

Section 91

The contracting authorityentity as the opponent and compensation of legal costs

In the proceedings regarding contract-related matters the contracting authorityentity shall be considered the opponent of the party or agency lodging the appeal

The provisions of Section 74 subsections 1 and 2 of the Administrative Judicial Procedure Act shall apply to the compensation of legal costs regarding contract-related matters

The provisions of Section 74 subsections 1 and 2 of the administrative Judicial Procedure Act

concerning public authorities or other public parties shall apply to the decision concerning the

liability to provide compensation for the legal costs of the opponent If one contracting authori-

tyentity has been responsible for the contracting procedure on behalf of the other contracting

authorities the obligation regarding compensation of legal costs may be placed on the con-

tracting authorityentity which acted on behalf of the other contracting authorities

Section 92

The effect of the appeal on concluding the contract

In case of a contract where the standstill period or the time limit referred to in section 81 must

be observed the contracting authorityentity may not conclude the contract if the matter has

been brought up for consideration by the Market Court

If the Market Court decides a case concerning enforcement or decides on the principal claim

before the standstill period or the time limit referred to in Section 81 has expired the contract-

ing authorityentity shall observe the standstill period or the time limit referred to in Section

81 until the end of the period notwithstanding the ruling of the Market Court

Section 93

Interim decisions of the Market Court

While the appeal is under consideration the Market Court may prohibit suspend or allow the

implementation of the decision concerning the contract award or order the contracting proce-

dure to be suspended otherwise as an interim measure for the duration of the proceedings in the Market Court

When deciding on the measure referred to in subsection 1 the Market Court shall take into

consideration that the harm caused by the measure to the opponent the rights of third par-

ties the security of the state or the public interest may not outweigh its benefits

However the decision prescribed in subsection 1 of this Section cannot be carried out in the case of a contract referred to in Section 68(2) of this Act

A legally trained member of the Market Court may alone issue a ruling as an interim measure

Section 94

Interim commitment of the contracting authorityentity

While the appeal is under consideration the contracting authorityentity may provide a written

undertaking to the Market Court stating that it will not enforce the decision concerning the contract for as long as the matter is pending in the Market Court

39

If the contracting authorityentity provides the Market Court with the undertaking referred to

in subsection 1 the Market Court will not issue without a specific reason a decision on the

obligation to interim prohibition on implementing the decision to award the contract

Section 95

Temporary organisation of a contract

If an appeal has been lodged against a contract before the Market Court the contracting au-

thorityentity may temporarily organise the contract by ordering it from a supplier who partici-

pated in the contracting procedure or from a previous supplier if the nature of the contract is

such that executing the contract cannot be postponed for the duration of the Market Court pro-ceedings

Temporary contract arrangements must not hinder the execution of the following items by means of a decision of the Market Court

1) the decision of the contracting authorityentity to cancel the contract in full or in part

2) prohibit the contracting authorityentity from applying any erroneous item included in the contract document or otherwise complying with an incorrect procedure or

3) require the contracting authorityentity to rectify its incorrect procedure

Section 96

Sanctions imposed by the Market Court

If during the contract procedure actions have been taken which are against this Act or the provisions based thereon or against European Union legislation the Market Court may

1) cancel the decision of the contracting authorityentity in full or in part

2) prohibit the contracting authorityentity from applying any erroneous item included in the contract document or otherwise complying with an incorrect procedure

3) require the contracting authorityentity to correct its erroneous procedure

4) order the contracting authorityentity to pay a compensatory fee to the party which would

have had a genuine chance to win the bidding competition had the procedure been correct

5) impose an ineffectiveness sanction on the contracting authorityentity

6) order the contracting authorityentity to pay an infringement fine to the state

7) reduce the contract term to end after a period of time specified by the Market Court has

passed

The provisions of Sections 97ndash100 shall apply to determining the sanctions mentioned in sub-

section 1 points 4ndash7 above When determining these sanctions the Market Court may consid-

er the contract to have been concluded on the basis of specific circumstances provided that

the contracting authorityentity has especially commenced the implementation of the contract

The ineffectiveness sanctions infringement fine and reduction of contract terms may only be

issued in contracts exceeding the EU thresholds referred to in Section 12 However an ineffec-tiveness sanction cannot be imposed in a service contract in accordance with Annex B

Only a compensatory fee can be imposed in a contract referred to in Section 68(2) of this Act

40

Section 97

Compensation

Provision for compensation may be made if the harm caused to the contracting authori-

tyentity rights of third parties state security and the public interest by the measure defined

in Section 96(1)(1ndash3) is considered to outweigh the benefits or if the petition has been initiat-

ed following the conclusion of the contract With respect to setting the amount of the compen-

satory fee account shall be taken of the nature of the infringement or omission by the con-

tracting authorityentity the value of the contract in question and the costs and damages in-

curred by the petitioner The Market Court may however decide not to prove for compensa-

tion if the contracting authorityentity has refrained from implementing the contract during the proceedings in the Market Court

Without a specific reason the amount of compensation shall not exceed 10 percent of the val-

ue of the contract

Section 98

Ineffectiveness

The Market Court may declare a contract ineffective if

1) the contracting authorityentity has made a direct award of contract without the basis re-ferred to in this Act and the procedures referred to in Section 81

2) the contracting authorityentity has concluded the contract although there is an obligation in the contract to observe a standstill period

3) the contracting authorityentity has concluded the contract contrary to Section 92 although

the procurement case has been submitted to the Market Court for a decision

In addition a requirement in the situation referred to in subsection 1 points 2 and 3 above is

that the contracting authorityentity has made another infringement contrary to this Act which has affected the chances of the appellant to win the contract

If the contracting authorityentity has concluded the contract in a competition based on the

framework agreement on the basis of Section 80 without observing the standstill period and if

a breach has been committed in the competition in respect of Section 27(2 or 3) such that this

has affected the chances of the appellant to win the contract the Market Court may declare the contract ineffective

The Market Court shall decide to which contractual obligations ineffectiveness shall apply Inef-

fectiveness shall apply only to unfulfilled contractual obligations

Section 99

Non-imposition of ineffectiveness

In the situations referred to in Section 98 above the Market Court may decide not to impose

ineffectiveness for compelling reasons related to the public interest or state security Economic

interests which are directly related to the contract may be deemed compelling only if ineffec-tiveness of the contract would exceptionally have inequitable consequences

The Market Court may not impose ineffectiveness if it would result in serious endangerment of

the implementation of a defence and security project essentially important with respect to

state security

Section 100

41

Infringement fines and reduction of the contract term

The Market Court may order a contracting authorityentity to pay the state an infringement

fine if

1) the Market Court has declared the contract ineffective

2) the contracting authorityentity has concluded the contract although there is an obligation in the contract to observe a standstill period

3) the contracting authorityentity has concluded the contract contrary to Section 92 although the procurement case has been submitted to the Market Court for a decision or

4) the Market Court has decided not to declare the contract ineffective for compelling reasons related to the public interest or state security in accordance with Section 99

In the situation referred to in subsection 1 point 4 above the Market Court may in addition to

or instead of imposing a sanction reduce the contract term so that it ends after a period of time specified by the Court

The Market Court may order a contracting authorityentity to pay the state an infringement

fine or reduce the contract term so that it ends after a period of time specified by the Court

this applies to service contracts referred to in Annex B of this Act the value of which exceeds

the EU threshold as defined in Section 12 if the contracting authorityentity

1) has made a direct award of contract without the basis referred to in this Act and the proce-dures referred to in Section 81 not having been complied with in the direct award

2) has concluded the contract although there is an obligation in the contract to observe the standstill period

3) has concluded the contract contrary to Section 92 although the procurement case has been submitted to the Market Court for a decision or

4) has concluded the contract in a competition based on a framework agreement on the basis

of Section 80 without observing the standstill period and if a breach has been committed in the

competition in respect of Section 27(2 or 3) such that this has affected the chances of the ap-pellant to win the contract

In addition a requirement in the situation referred to in subsection 3 points 2 and 3 above is

that the contracting authorityentity has made another infringement contrary to this Act which

has affected the chances of the appellant to win the contract

With respect to issuing a sanction the Market Court shall take into account the nature of the

mistake or omission by the contracting authorityentity and the value of the contract in ques-

tion The sanction shall not exceed 10 percent of the value of the contract

Section 101

Allocation of sanctions and cumulative effect

If one contracting authorityentity has been responsible for the contracting procedure on be-

half of the other contracting authorities the obligation to compensate for legal costs can be

placed on the contracting authorityentity that acted on behalf of the other contracting authori-

ties

With respect to the sanctions referred to in this Act the Market Court shall take into considera-

tion that the cumulative effect may not become unreasonable for the contracting authori-

tyentity or its contracting party

42

Section 102

Conditional fine

The Market Court may impose a conditional fine in order to underline the importance of com-

plying with the prohibitions or obligations referred to in this Act The provisions of the Act on

Conditional Fines (11131990) shall apply to the imposing of and sentencing to the payment of

conditional fines

If one contracting authorityentity has been responsible for the contracting procedure on be-

half of the other contracting authorities the obligation to compensate for costs can be placed

on the contracting authorityentity that acted on behalf of the other contracting authorities

Section 103

Notification of the Market Courts ruling

The ruling of the Market Court along with the instructions for appeal shall be verifiably notified under the provisions of the Administrative Judicial Procedure Act

With the consent of the appellant and the contracting authorityentity the Market Courts deci-

sion together with the instructions for appeal may be publicised using the electronic contact

information the aforementioned parties have provided to the Market Court

When electronic contact information is used the appellant and the contracting authorityentity

shall be deemed to have been notified of the decision and instructions for appeal on the date

on which the message concerning the matter is available in the recipientsrsquo reception equipment

so that the message can be handled The provisions of Section 77(1) shall apply to electronic

notification

Section 104

Prohibition to appeal

A case that is within the jurisdiction of the Market Court cannot be appealed against under the

provisions of the Local Government Act or the Administrative Judicial Procedure Act

A decision or ruling concerning a contract which has been excluded from the scope of applica-

tion of this Act on the basis of Section 6(2) and Sections 78 or 13 may not be appealed under

the Administrative Judicial Procedure Act or the Local Government Act The subcontractor may

not under the Administrative Judicial Procedure Act or the Local Government Act appeal the

decision or action taken by the contracting authorityentity concerning the subcontract

Section 105

Appeals against the decisions of the Market Court

Appeals against a ruling of the Market Court can be lodged in the Supreme Administrative Court in accordance with the Administrative Judicial Procedure Act

As referred to in Section 93(1) an appeal cannot be lodged against the ruling by the Market

Court in the Supreme Administrative Court A ruling by the Market Court does not prevent the

case from being reconsidered by the Market Court if the grounds for the previous ruling have

changed

If the Market Court has ruled that it will not grant the processing authorisation referred to in

Section 88(3) then an appeal against this ruling can only be lodged if the Supreme Adminis-

trative Court grants a leave to appeal

43

Section 106

Application of the Administrative Judicial Procedure Act

The Administrative Judicial Procedure Act shall apply to appeals unless otherwise provided by this Act

Section 107

Implementation of rulings

A ruling of the Market Court has to be observed notwithstanding any appeal unless the Su-

preme Administrative Court orders otherwise The ruling of the Market Court issuing the sanc-

tion referred to in Section 96(1)(4ndash7) may only be implemented on the basis of a final ruling

The implementation of a ruling concerning a sanction shall be supervised by the Legal Register

Centre The Legal Register Centre must be informed of any ruling by the Market Court and

Supreme Administrative Court to issue a sanction

Section 108

Compensation for damages

Those who cause damage to a candidate tenderer or supplier shall be liable to pay compensa-

tion for the damage they have caused while acting in breach of this Act or any regulations based thereon or the European Union law

However when the claim for damages refers to costs incurred as a result of the tendering pro-

cedure the candidate or tenderer is entitled to compensation if it can provide proof of the in-

correct procedure as defined in subsection 1 and that had the procedure been correct it would have had a genuine chance to win the contract

In respect of the cases defined in subsection 1 and 2 a Court of first instance shall be the

competent court in accordance with Chapter 10 of the Code of Judicial Procedure

Chapter 16

Further provisions

Section 109

Disclosure of information

Notwithstanding the provisions concerning confidentiality provided for in the Act on the Open-

ness of Government Activities or in any other act the contracting authorityentity shall supply

statistics and other information concerning the different stages of the contract and performed

contracts to the Finnish authorities and European Union bodies to monitor contracts and ex-

change information on the scale and to the time limit required by European Union law Pursu-

ant to this Act the Ministry of Economic Affairs and Employment has the right to forward in-

formation it has received to the European Union authorities notwithstanding the regulations on confidentiality

The contracting authorityentity shall draw up a written report on each contract and framework

agreement which includes essential information on the contract contract procedure and the

candidates and tenderers who participated as well as on the decisions made in connection with

44

the contract The report and its main content shall be forwarded on request to the European

Commission A separate report is not required if corresponding information can be found in the

contract decision or other documents

To document the course of the realised contract procedure the contracting authorityentity

shall implement necessary measures in an electronic format

More specific rules are laid down in a Government decree on the obligation to provide statistics

and the responsibility of the contracting authorityentity to draw up reports on contract proce-

dures and contract decisions as referred to in subsection 1 which are to be forwarded to the

European Union bodies

Section 110

Entry into force and transitional provisions

This Act enters into force on 1 January 2012

If a contract procedure is started before the entry into force of this Act the provisions that

were in force at the time when this Act entered into force shall be applied The contract proce-

dure shall be deemed to have commenced when the contract notice was published A contract

which does not require the publication of the contract notice shall be deemed to have com-

menced when the invitation to tender or a meeting is sent or negotiations with suppliers begin

Measures necessary for the implementation of this Act may be undertaken before the Actrsquos

entry into force

45

ANNEX A

Primary services

Group No

Matter CPV Reference No

1 Maintenance and repair services 50000000-5 50100000-6-50884000-4 (except 50310000-1-50324200-4 and 50116510-9 50190000-3 50229000-6 50243000-0) and 51000000-9-51900000-1

2 Services related to international military assistance

75211300-1

3 Defence services military defence services and civil defence services

75220000-4 75221000-1 75222000-8

4 Investigation and security services 79700000-1-79720000-7

5 Land transport services 60000000-8 60100000-9-60183000-4 (except 60160000-7 60161000-4) and 64120000-3-64121200-2

6 Air transport services for passengers and freight except transport of mail

60400000-2 60410000-5-60424120-3 (except 60411000-2 60421000-5) 60440000-4-60445000-9 and 60500000-3

7 Transport of mail by land and by air 60160000-7 60161000-4 60411000-2 60421000-5

8 Railway transport services 60200000-0-60220000-6

9 Sea transport services 60600000-4-60653000-0 and 63727000-1-63727200-3

10 Support and auxiliary transport services 63100000-0-63111000-0 63120000-6-63121100-4 63122000-0 63512000-1 and 63520000-0-6370000-6

11 Telecommunications services 64200000-8-64228200-2 72318000-7 and 72700000-7-72720000-3

12 Financial services insurance services 66500000-5-66720000-3

13 Data-processing and related services 50310000-1-50324200-4 72000000-5-72920000-5 (except 72318000-7 and 72700000-7-72720000-3) 79342410-4 9342410-4

14 Research and development services(sup1) and evaluation tests

73000000-2-73436000-7

15 Accounting auditing and bookkeeping services

79210000-9-79212500-8

16 Management consulting(sup2) and related services

73200000-4-73220000-0 79400000-8-79421200-3 and 79342000-3 79342100-4 79342300-6 79342320-2 79342321-9 79910000-6 79991000-7 98362000-8

17 Architectural services engineering services and integrated engineering services urban planning and landscape architectural services related scientific and technical consulting services technical testing and analysis services

71000000-8-71900000-7(except 71550000-8) and 79994000-8

18 Building cleaning services and building and property management services

70300000-4-70340000-0 and 90900000-6-90924000-3

19 Sewage and refuse disposal services 90400000-1 to 90743200-9 (except 90712200-3)

46

sanitation and similar services 90910000-9-90920000-2 and 50190000-3 50229000-6 50243000-0

20 Training and simulation services in the fields of defence and security

80330000-6 80600000-0 80610000-3 80620000-6 80630000-9 80640000-2 80650000-5 80660000-8

(sup1) Except the research and development services referred to in Section 13(2)(5) (sup2) Except arbitration and conciliation services ANNEX B Secondary services

Group No

Matter CPV Reference No

21 Hotel and restaurant services 55100000-1-55524000-9 and 98340000-8-98341100-6

22 Support and auxiliary transport services 63000000-9-63734000-3 (except 63711200-8 63712700-0 63712710-3) 6372700-1-63727200-3 and 98361000-1

23 Legal services 79100000-5-79140000-7

24 Employment and personnel recruitment services(sup1)

79600000-0-79635000-4 (except 79611000-0 79632000-3 79633000-0) and 98500000-8-98514000-9

25 Health and social services 79611000-085000000-9 and -85323000-9 (except 85321000-5 and 85322000-2)

26 Other services

(sup1) Except employment contracts

47

ANNEX C NACEsup1ordm

Main category F CONSTRUCTION CPV code

2-digit level

3-digit level

4-digit level

Description Comments

45 Construction This two-digit level includes the following construction of new buildings and works reconstruction and common repairs

45000000

451 Site preparation

45100000

4511 Demolition and wreck-ing of buildings earth moving

This four-digit level includes the following - demolition of buildings and other structures - clearing of building sites and earth moving site excavation landfill and levelling trench dig-ging quarrying blasting etc - site preparation for mining

- overburden removal and other development and prepa-ration of mines and mining sites

This four-digit level also includes - building site underdrainage - drainage of agricultural or forestry land

45110000

4512 Test drilling This four-digit level includes the following - test drilling test boring and sampling for construction geophysical geological or similar purposes This four-digit level excludes the following - drilling of oil or gas wells comp 1120 - water well drilling 4525

45120000

sup1deg Council regulation (EEC) No 303790 (Official Journal of the European Union 293 24 October 1990 p 1) on the statistical classification of economic activities in the European Community issued on 9 October 1990 regulation as amended by Commission Regulation (EEC) No 76193 (Official Journal of the European Union L 83 3 April 1993 p 1) If there are differences of opinion between CPV and NACE NACE nomenclature shall apply

48

- shaft sinking comp 4525 - oil and gas field exploration geophysical geological and seismic surveying comp 7420

452 Building complete constructions or parts thereof

45200000

4521 Building work This four-digit level includes the following - Construction of all types of buildings - civil engineering and hydraulic engineering works - building of bridges including those for elevated highways metro tunnels - construction of long-distance pipelines communication cables and long-distance networks for power lines - construction of long-distance pipelines telecommunication ca-bles and municipal network power lines related installation work - on-site assembly and erection of pre-fabricated constructions This four-digit level excludes the following - services related to oil and gas extraction comp 1120 - erection of complete prefabricat-ed constructions from self-manufactured parts not of con-crete comp 20 26 28 - construction work other than buildings for stadiums swimming pools gymnasiums tennis courts golf courses and other sports installations comp 4523 building installation comp 453 - building completion comp 454 - architectural and engineering services comp 7420 - project management for construction comp 7420

45210000 Except 45213316 45220000 45231000 45232000

4522 Erection and covering of roofs

This four-digit level includes the following - erection of roofs - roof covering - waterproofing

45261000

49

4523 Construction of highways streets airports and sports equipment

This four-digit level includes the following - construction of highways streets other vehicular and pedestrian ways - construction of railways - construction of airfield runways - construction work other than build-ings for stadiums swimming pools gymnasiums tennis courts golf courses and other sports installations - painting of markings on road surfaces and car parks This four-digit level excludes the following - preliminary earth moving comp 4511

45212212 and DA03 45230000 except 45231000 45232000 45234115

4524 Construction of water projects

This four-digit level includes the following building works - construction of waterways harbour and river works marinas locks etc - construction of dams and breakwaters - dredging - subsurface work

45240000

4525 Other construction work

This four-digit level includes the following - construction activities specialising in one aspect common to different kinds of structures requiring specialised skill or equipment - construction of foundations including pile driving - water well drilling and construction shaft sinking - erection of non-self-manufactured steel frame elements - steel bending - bricklaying and stone setting - erecting and dismantling of scaffolds and work platforms including rental of scaffolds and work platforms - erection of chimneys and industrial ovens This four-digit level excludes the following - rental of scaffolds without erecting and dismantling comp 7132

45250000 45262000

453 Building installation 45300000

4531 Installation of electri-cal wiring and fittings

This four-digit level includes the installation in buildings or other

45213316 45310000

50

construction projects of - electrical wiring and fittings - telecommunications systems - electrical heating systems - residential antennas - fire alarms - burglar alarm systems - lifts and escalators - lightning conductors etc

Except 45316000

4532 Insulation work This four-digit level includes the following - installation in buildings or other construction projects of thermal sound or vibration insulation This four-digit level excludes the following - waterproofing comp 4522

45320000

4533 Plumbing This four-digit level includes the installation in buildings or other construction projects of the following - plumbing and sanitary equipment and fittings - gas fittings - heating ventilation refrigeration or air-conditioning equipment and ducts - sprinkler systems This four-digit level excludes the following - installation of electrical heating systems comp 4531

45330000

4534 Other installation work

This four-digit level includes the fol-lowing - installation or other construction of illumination and signalling systems for roads railways airports and harbours - installation in buildings or other construction projects of fittings and fixtures

45234115 45316000 45340000

454 Building completion 45400000

4541 Plastering This four-digit level includes the following - application in building or other construction projects of interior and exterior plaster or stucco and other similar lathing materials

45410000

4542 Joinery installation This four-digit level includes the following - installation of non-self-manufactured doors windows door

45420000

51

and window frames fitted kitchens staircases and shop fittings made of wood or other materials - completion of interiors such as ceilings wooden wall coverings wall paneling installation of movable partitions etc This four-digit level excludes the following - laying of parquet and other wooden floor coverings comp 4543

52

4543 Floor covering and wall upholstery

This four-digit level includes the following - covering or tiling of buildings or other structures using - ceramic concrete or stone wall or floor tiles or stones - parquet or other wooden floor covering - wall-to-wall carpeting or linoleum also rubber or plastic floor covering - wall or floor covering made of mosaic marble granite or slate - wallpaper

45430000

4544 Painting and glazing This four-digit level includes the following - interior and exterior painting of buildings - exterior painting of other structures - installation of mirrors glass etc This four-digit level excludes the following - installation of windows comp 4542

45440000

4545 Other building completion

This four-digit level includes the following - construction of private swimming pools - cleaning the exterior surfaces of buildings using steam sandblasting or other similar method - other building completion work not classified elsewhere This four-digit level excludes the following - cleaning of buildings and other structures comp 7470

45212212 and DA03 45450000

455 Rental of construction or dismantling equip-ment with operators

45500000

4550 Rental of construction or dismantling equip-ment with operators

This four-digit level excludes the following - rental of construction or dismantling machines and equipment without operators comp 7132

45500000

22

5) money laundering as defined in Article 1 of Council Directive 91308EEC on prevention of

the use of the financial system for the purpose of money laundering or financing of terrorism

A derogation from the requirement to exclude from the participation in competitive bidding a

candidate or tenderer who has been the subject of a conviction for a reason referred to in this

Section may be provided for overriding requirements in the general interest or subject to the

condition that the convicted person no longer holds a responsible position in the undertaking submitting the tender

Section 48

Other criteria for exclusion

The contracting authorityentity may make the decision to exclude from participation in com-petitive bidding a candidate or tenderer which

1) is bankrupt or is being wound up or has ceased operations where it has entered into an

arrangement with creditors or a reorganisation plan or is in an analogous situation arising from a similar procedure under the law

2) is the subject of proceedings for declaration of bankruptcy for an order for compulsory

winding up or of proceedings for other procedures referred to in point 1

3) has been convicted by judgment that has the force of res judicata of any offence concerning hisher professional conduct such as breaching the obligations concerning export control

4) has been guilty of grave professional misconduct such as breaching its obligations concern-

ing information security and security of supply or a similar offence in association with a previ-ous contract which the contracting authorityentity can prove

5) whose reliability has been proven to be inadequate to the degree where a risk to national

security cannot be excluded

6) has not fulfilled obligations to pay taxes or social security contributions in Finland or in the

country in which it is established or

7) is guilty of serious misrepresentation in supplying the information to the contracting au-

thorityentity required to apply the provisions of this Chapter or has neglected to provide the required information

The provisions laid down in subsection 1 points 3 and 4 shall apply in cases where the person

guilty of a mistake or negligence is a director or any person having powers of representation

decision or control in respect of the candidate or tenderer The decision on the exclusion may

take account of other matters such as the seriousness of the offence or omission the connec-

tion with the object of the contract the time lapsed any other implications of the offence and

any remedial action taken by the person convicted of the offence or omission

Section 49

Verification of the criteria for exclusion

The contracting authorityentity may request that the candidates and tenderers and the com-

petent authorities of other European Union member states in accordance with the appropriate

regulations submit evidence and clarifications in order to verify whether the exclusion criterion referred to in Section 47 or 48 applies to the candidate or tenderer

As regards Section 47 and Section 48(1)(3) the contracting authorityentity shall accept as

evidence an extract from the criminal record issued by a competent authority in the country in

which the tenderer is established As regards Section 48(1)(2 6) a certificate issued by the competent authority shall also be accepted as evidence

Where the country in which the candidate or tenderer is established does not issue such ex-

tracts or documents they may be replaced by a declaration on oath or by a solemn declaration

under the law of the country in which the representative of the candidate or tenderer is estab-

lished

23

Section 50

Requirements and references relating to the suitability of candidates and tenderers

The contracting authorityentity may set requirements relating to the candidates or tenderers

financial and economic standing technical capacity professional ability information security

security of supply and requirements concerning quality and request that the candidates and tenderers submit the related reports

In order to verify the requirements and that the requirements are satisfied the references re-

quested shall be related to the candidates or tenderers ability to perform the contract and

they shall be in proportion to the subject matter purpose and scope of the contract Require-

ments and references shall be indicated in the contract notice Candidates or tenderers failing

to satisfy the minimum requirements set by the contracting authorityentity shall be excluded from participation in the competitive bidding

The contracting authorityentity shall indicate in the contract notice any objective and non-

discriminatory criteria and rules which it shall apply in restricted procedures negotiated pro-

cedures or in the competitive dialogue procedure to admit candidates or tenderers to the com-

petitive bidding or negotiations The contracting authorityentity shall state the minimum

number of candidates and where appropriate also the maximum number of candidates

The contracting authorityentity may invite candidates or tenderers to supplement or clarify

the references and other documents

Section 51

Register data

The contracting authorityentity may request that the candidate or tenderer prove under the law of the country in which it is established that

1) it is registered in a professional or trade register

2) it carries out a trade by providing a declaration on oath or certificate and

3) it is entitled to provide a service in the country in which it is established by providing a li-cense or a certificate of membership of an organisation

Section 52

Economic and financial standing

The contracting authorityentity may request that a candidate or tenderer furnish proof of its financial and economic standing by references such as

1) a statement from a bank or credit institution or evidence of professional risk indemnity in-surance

2) a profit and loss account balance sheet annual report financial statements and group fi-

nancial statements if these must be published in the country in which the candidate or ten-

derer is established and

3) a statement of the undertakings overall turnover and turnover in the area that is the object

of the contract for a maximum of the three most recent fiscal periods if information on these turnovers is available

If for any valid reason the candidate or tenderer is unable to provide the documents request-

ed by the contracting authorityentity it may demonstrate its economic and financial standing

by any other document which the contracting authorityentity considers appropriate

24

Section 53

Technical capacity and professional ability

The contracting authorityentity may request that the candidate or tenderer furnish proof of its

technical capacity and professional ability by the following documents

1) the educational and professional qualifications of the candidate or tenderer or those of the

management of the undertaking and in particular those of the persons responsible for man-

aging the work or providing services or products that involve siting or installation functions or services

2) a list of the works carried out over a period not exceeding the past five years accompanied

by a certificate of satisfactory execution of the most important works the certificate shall indi-

cate the value date and site of the works and shall specify whether they were carried out ac-

cording to the rules of the trade and properly completed where appropriate a competent au-thority shall submit these certificates to the contracting authorityentity directly

3) a list of the principal deliveries carried out or the main services provided over a period not

exceeding the past five years with the sums dates and recipients involved where the recipi-

ent was a public body the list shall be verified by the competent authority where the recipient

was a private purchaser by the purchasers certification or failing this by a declaration of the

candidate or tenderer

4) an indication of the technical experts or bodies involved whether or not they belong directly

to the candidate or tenderer especially those responsible for quality control and in the case of

public works contracts those experts and bodies upon whom the contractor can call in order to carry out the work

5) the candidates or tenderers description of the tools equipment and actions by which it

ensures quality as well as the research and testing equipment required to implement the con-tract and the internal rules regarding industrial property and copyrights

6) a certificate for the inspection carried out by the candidate or tenderer or on its behalf by a

competent official body of the country in which the candidate or tenderer is established regard-

ing the candidatersquos or tendererrsquos production capacities technical capacity research or trial sys-

tems or quality control measures which it will implement

7) a statement of the average annual manpower of the service provider or contractor and the number of managerial staff for the last three years as a maximum

8) a statement of the tools fixtures technical equipment number of personnel know-how and

sources available to the service provider or tenderer for carrying out the contract for fulfilling

the additional needs that may arise from any crisis that the contracting authorityentity may

undergo or for the maintenance modernisation or adaptation of the products that are the ob-

ject of the contract in addition information on the geographic location of the tools fixtures

technical equipment number of personnel know-how and sources in the event that these are located outside of the European Union

9) with regard to the products to be supplied samples descriptions and photographs the au-

thenticity of which must be certified if the contracting authorityentity so requests and certifi-

cates drawn up by an official quality control institute or agencies of recognised competence

attesting to the conformity of the products to be supplied with technical specifications or standards and

10) with regard to public contracts having as their object supplies requiring a service or siting

or installation work an indication of professional ability efficiency experience and reliability

If appropriate to the object of the contract the contracting authorityentity may request that

the candidate or tenderer provide an indication of the environmental management measures to

be applied when performing a public works or service contract Should the contracting authori-

tyentity require the production of certificates drawn up by independent bodies attesting the

compliance of the tenderer with environmental management standards it shall refer to the

Community eco management and audit scheme (EMAS) or to the environmental management

standards based on relevant European or international standards certified by bodies conform-

25

ing to Community law or relevant European or international standards concerning certification

The contracting authorityentity shall accept equivalent certificates from bodies established in

other European Union member states and other evidence of equivalent environmental man-agement measures from the suppliers

If appropriate to the object of the contract the contracting authorityentity may request that

the candidate or tenderer provide an indication of the quality assurance measures Should the

contracting authorityentity require the production of certificates drawn up by independent

bodies attesting to the compliance of the tenderer with quality assurance standards the con-

tracting authorityentity shall refer to quality assurance systems based on relevant European

standards series certified by bodies conforming to the European standards series concerning

certification The contracting authorityentity shall accept equivalent certificates from bodies

established in other European Union member states and other evidence of equivalent quality assurance measures from the tenderers

If for any valid reason the candidate or tenderer is unable to provide the documents request-

ed by the contracting authorityentity it may demonstrate its economic and financial standing by any other document which the contracting authorityentity considers appropriate

Section 54

Requirements on information security set for candidates and tenderers

If classified documents are submitted drawn up or otherwise dealt with to carry out a call for

tender the contracting authorityentity may set requirements for candidates or tenderers to

meet the information security requirements laid down for authorities The contracting authori-

tyentity may request candidates or tenderers to provide commitments or information which

prove their capacity to meet the information security requirements

For candidates who have not obtained the certificate or commitment referred to in Section 1

the contracting authorityentity may grant additional time to obtain the certificate or commit-

ment In that case a deadline shall be set for the delivery of these In addition to the com-

mitments and information provided by the candidate the contracting authorityentity may render and consider any supplemental investigations it has conducted

Section 55

Legal form of the candidate and the tenderer and indication of the responsible per-sons

A candidate or tenderer which under the legislation of the country in which it is established is

entitled to provide the services that are the object of the contract may not be rejected solely

on the ground that under the legislation of the European Union member state in which the contract is awarded it would be required to be either a natural or legal person

In the case of public service and public works contracts as well as public supply contracts in-

volving siting and installation operations the contracting authorityentity may require candi-

dates and tenderers to indicate in the tender or the request to participate the names and pro-

fessional qualifications of the persons responsible for carrying out the services or the work in question

Section 56

Groups participating in the competitive bidding and reliance on the capacities of oth-er entities

Groups of suppliers may submit tenders or put themselves forward as candidates The con-

tracting authorityentity may not require these groups of candidates or tenderers to assume a

specific legal form in order to submit a tender or a request to participate However the group

may be required to do so during the term of the contract to the extent that this change is necessary for the satisfactory performance of the contract

26

A candidate or tenderer may rely on the capacities of other entities regardless of the legal na-

ture of the links it has with them to carry out the contract A group may rely on the abilities of

participants in the group or in other entities in order to perform the contract The candidate or

tenderer or a group thereof shall furnish the contracting authorityentity with proof that the

requirements relating to economic and financial standing technical capacity and professional

ability and other requirements are satisfied This proof may include contracts between compa-

nies or other binding documents demonstrating that the capacities to satisfy the requirements are accessible by the candidates or tenderers

Section 57

Selecting the tender

The contract awarded shall be either the economically most advantageous tender from the

point of view of the contracting authorityentity in accordance with the comparison criteria

linked to the object of the contract or the lowest in price When the award is made to the eco-

nomically most advantageous tender the criteria may include for example quality price

technical merit aesthetic and functional characteristics environmentally friendly characteris-

tics running costs costs associated with a long life cycle cost effectiveness after-sales ser-

vice and technical assistance delivery date delivery period and period of completion security of supply and interoperability and functional characteristics

The contracting authorityentity shall specify in the contract notice or the invitation to tender

documentation the comparison criteria and the relative weighting which it gives to each of the

criteria chosen to determine the economically most advantageous tender In the competitive

dialogue procedure the equivalent information shall be specified in the contract notice or the

project description The weighting may also be specified by indicating a reasonable range If it

is not reasonably possible to specify the relative weighting of the comparison criteria they

shall be specified in the order of importance

Section 58

Abnormally low tenders

The contracting authorityentity may reject tenders that are abnormally low in relation to the

quality and scope of the contract Before it may reject a tender the contracting authori-

tyentity shall request in writing a written report from the tenderer on the constituent ele-ments of the tender

The request referred to in subsection 1 may relate in particular to the economic and technical

solutions chosen for the manufacture of the goods supply of the service or execution of the

work exceptionally favourable conditions for the execution of the contract the originality of

the proposed solution employment protection at the place where the contract is executed and

compliance with the provisions relating to working conditions or the possibility of the tenderer

receiving state aid The contracting authorityentity shall verify the constituent elements of the tender taking into account the evidence supplied

The contracting authorityentity may reject a tender which is abnormally low in price because

the tenderer has obtained state aid illegally The tender can be rejected only after a sufficient

time limit has been fixed for the tenderer to prove that the state aid in question was granted

legally If the contracting authorityentity rejects the tender because of illegal state aid it shall report the matter to the European Commission

Section 59

Taking account of a subsidy awarded by the contracting authorityentity in the com-parison of tenders

If the tenderer is an entity belonging to the contracting authorityentitys organisation or if the

contracting authorityentity has granted or will grant the tenderer a financial subsidy which will

affect the price of the tender in the comparison of the tenders the contracting authorityentity

27

shall take into account the factors which will genuinely affect the price of the tender paid by

the contracting authorityentity such as the financial subsidy in question

Chapter 9 Subcontract agreements

Section 60

Subcontracts with related companies

The contracting authorityentity may request the tenderer to state in its tender which part of

the contract it plans to award as a subcontract to related companies and to list these compa-

nies The contracting authorityentity may also request tenderers submitting tenders as a

group as defined in Section 56 to indicate in their tender which part of the contract they plan

to award as a subcontract to their related companies and to list these companies If the rela-

tionships between the companies change during the procurement procedure the tenderer shall update the information included in its tender

A related company means a company which is under the direct or indirect control of the ten-

derer or which has direct or indirect control of the tenderer or which jointly with the tenderer

is under the control of another company on the basis of ownership financial contribution or the

regulations under which the company operates A company is considered to have control of

another company when it owns the majority of that companys unrestricted shareholder equity

controls the majority of the companys shareholders voting rights or may appoint half of the

members of the companys administrative managerial or supervisory body

The provisions of Sections 62-66 of this Act concerning subcontracting agreements are not

applicable to subcontracting agreements which the tenderer has entered into with a related

company or when the tender has been submitted by a group as defined in Section 56 to a

company belonging to the same group or a company which is a related company of a company

belonging to the group

Section 61

Selecting a subcontractor

The tenderer may select its subcontractors in all subcontracting agreements unless otherwise prescribed in Sections 62ndash66 of this Act

Section 62

Requirements concerning subcontracting agreements

The contracting authorityentity shall define the requirements for a subcontracting agreement

in the contract notice and further specify them in the invitation to tender In defining the re-

quirements for subcontracting agreements the principles of proportionality and non-discrimination must be complied with

The contracting authorityentity may require that the tenderer state in the tender which part

or parts of the contract it plans to subcontract to third parties the content of the subcontract-ing agreement and the chosen subcontractors shall also be stated

In addition to the provisions of subsection 2 the contracting authorityentity may require that

the tenderer selected as a contracting party shall

1) in accordance with the procedures laid down in Sections 64ndash66 of this Act invite bids on

part or all of the subcontracts included in the tender and stated in the notice in accordance with subsection 2 or

2) award the minimum amount of the contract value as defined by the contracting authori-

tyentity to third parties as subcontracts and invite bids on these subcontracts in accordance

with the procedures laid down in Sections 64ndash66 of this Act The contracting authorityentity

shall in that case define as percentages the minimum and maximum amount the tenderer shall

award to third parties as subcontracts and require that the tenderer state in its tender which

28

part or parts of the contract it plans to award to third parties as subcontracts in order to fulfil

the requirement of the contracting authorityentity The maximum amount defined by the con-tracting authorityentity shall not exceed 30 percent of the value of the contract or

3) invite bids on a part or parts of the subcontracts which it plans to award to third parties in

addition to the subcontracts mentioned in point 2 above In that case the contracting authori-

tyentity shall require that the tenderer specify in its tender those parts of the contract which it

plans to award as subcontracts to third parties in addition to the subcontracts mentioned in point 2 above

In addition to the provisions of subsections 2 and 3 the contracting authorityentity may re-

quire that the tenderer report any changes occurring at the subcontractor level during the im-

plementation of the contract

The contracting authorityentity shall set the maximum and minimum amount as defined in

subsection 3 point 2 having regard to the object and value of the contract and the character of the industry sector in question the competitive situation and technical capacity

The tenderer has the right to award more subcontracts to third parties than required by the contracting authorityentity in accordance with this Section

Section 63

Rejecting a subcontractor

The contracting authorityentity may specify requirements concerning the subcontractors fi-

nancial and economic situation technical capacity and professional competence information

security security of supply or quality These as well as other requirements concerning the

suitability of the subcontractor shall be stated in the contract notice These requirements shall

be equitable and non-discriminatory and conform to the requirements set in the invitation to tender concerning the suitability of the candidate or tenderer

The contracting authorityentity may decide to reject a subcontractor selected by the tenderer

during the contract procedure or the implementation of the contract if the subcontractor does

not meet the requirements set in the contract notice concerning the suitability of the subcon-

tractor or the exclusion criterion laid down in Section 47 or Section 48 applies to the subcon-

tractor The contracting authorityentity shall justify the rejection in writing to the tenderer

Section 64

Implementation of subcontracts

A tenderer selected as a contracting party shall act openly and treat any and all subcontractors

equally and in a non-discriminatory manner

A tenderer selected as a contracting party shall provide for the publication a subcontract notice

concerning those subcontracts to which the bidding obligation laid down in Section 62(3) ap-

plies and whose estimated value without value added tax exceeds the EU thresholds men-

tioned in Section 12 The notice obligation shall not apply to a subcontract which fulfills the

requirement set for a direct contract award mentioned in Sections 22ndash23 The provisions of

Sections 14ndash16 shall apply to the calculation of the estimated value of subcontracts

The tenderer selected as the contracting party shall specify in the subcontract notice the crite-

ria which the tenderer will apply in assessing the suitability of the subcontractors and in select-

ing them These criteria shall be equitable and non-discriminatory and conform to the criteria

that the contracting authorityentity applies in assessing the suitability of the tenderers The

requirements shall be related to the object of the subcontract and be proportional to the scope

of the subcontract

A tenderer selected as a contracting party may publish a subcontract notice also concerning

those subcontracts which meet the criteria for the subcontracts referred to in Sections 22ndash23

29

Section 65

Exemption from an obligation related to subcontracting

A tenderer selected as a contracting party may not be required to enter into a subcontract if it

indicates in a manner satisfactory to the contracting authorityentity that none of the subcon-

tractors that participated in the competition or none of their tenders fulfil the requirements

set in the subcontract notice and therefore the tenderer selected as a contracting party could

not fulfil the contract requirements

Section 66

Framework agreements

The provisions of Section 62 shall not apply to subcontracts awarded by the tenderer selected

as a contracting party if the framework agreement was put out to tender in accordance with

the provisions of Section 64

Subcontracts based on a framework agreement shall be awarded in accordance with the condi-

tions confirmed in the framework agreement and concluded between the original participants

to the framework agreement Conditions analogous to those of the framework agreement shall be complied with in subcontracting agreements

The framework agreement may not be used in such a way as to distort restrict or prevent

competition

The term of the framework agreement may not exceed seven years In exceptional cases the

framework agreement may be longer in duration when duly justified by the expected life cycle

of the supplies equipment and systems delivered and the technical problems that might re-

sult from the change of supplier

Section 67

The responsibility of the tenderer for carrying out the contract

The requirements set by the contracting authorityentity on the basis of this Chapter and the

notices issued by the tenderers based on them do not limit the responsibility of the tenderer

selected as a contracting party to carry out the contract PART III

National procedures

Chapter 10 Tendering procedures for contracts below the EU threshold for second-

ary service contracts referred to in Annex B and for certain other contracts

Section 68

Contract award procedures

The contract award procedures specified in this Chapter may be used for service contracts

public works contracts and the service contracts referred to in Annex A which are below the EU

threshold referred to in Section 12(1) but above the national threshold referred to in Section

13(1) and for secondary service contracts referred to in Annex B which are above the national

threshold referred to in Section 13(1)

The procedures laid down in this Chapter may also be used for defence contracts referred to in

Section 5 when the value of the defence contracts exceed the national threshold as referred to

in Section 13 provided that the criteria set in Article 346(1)(b) of TFEU are fulfilled

30

Section 69

General rules of procedure

The contracting authorityentity shall aim to take advantage of the prevailing competitive con-

ditions and award the contract primarily through competitive bidding A sufficient number of

tenders shall be requested in terms of the scope and subject matter of the contract to ensure

competition

A public notice shall be issued however the publication obligation does not apply in the case

of contracts that fulfil the criteria set in Article 346(1)(b) of TFEU

The contracting authorityentity may request a tender directly from one supplier if competitive

bidding cannot be carried out for reasons justified on the basis of national defence state secu-rity or security of supply

The contracting authorityentity may also request a tender directly from one supplier if

1) no tenders or no suitable tenders were received in the competitive bidding carried out

previously a further requirement is that the conditions of the original invitation to ten-

der are not fundamentally changed

2) for technical reasons or for reasons connected with the protection of exclusive rights the contract may be awarded only to a particular supplier

3) for reasons of urgency brought about by a crisis it is not possible to carry out competi-tive bidding

4) execution of the contract is absolutely necessary and competitive bidding cannot be

carried out for reasons of extreme urgency brought about by events unforeseeable by

and independent of the contracting authorityentity

5) the product to be acquired are manufactured purely for scientific or research purposes

and it is not a matter of establishing commercial viability of the products or to recover research and development costs

6) the object of the contract is a research and development service that has not been ex-cluded from the scope of this Act on the basis of Section 8

7) the contract is necessary in order to determine whether the final result of the research

and development service is suitable to be used as intended by the contracting authori-tyentity

8) the object of the contract consists of supplies quoted and purchased on a commodity market

9) the supplies are purchased on particularly advantageous terms from either a supplier

winding up its business activities or from the receivers of a bankruptcy or liquidators in

insolvency proceedings an arrangement with creditors or a similar procedure

10) the object of the contract is a second-hand product

11) the object of the contract is based on a supplementary contract right incorporated into

the contract

12) the object of the contract is additional deliveries by the original supplier which are in-

tended either as a partial replacement of existing supplies or installations or as the ex-

tension of existing supplies or installations and a change of supplier would result in in-

compatibility or disproportionate technical difficulties in operation and maintenance

13) the object of the contract is additional works or services not included in the project ini-

tially but which have through unforeseen circumstances become necessary for the per-

formance of the works or services as originally described

31

Section 70

Negotiations with tenderers and specifying the tender and the invitation to tender

The contracting authorityentity may discuss all aspects of the contract with the tenderers dur-

ing the negotiation provided that the negotiations do not result in changing constituent ele-

ments in the invitation to tender in a discriminating manner or in a manner which distorts

competition

The purpose of the negotiations shall be to select the best tender in accordance with Section

73(2) or to determine one or more alternative solutions for contract implementation before

sending the final invitation to tender The dialogue may take place in successive stages in or-

der to reduce the number of tenders or solutions to be discussed during the dialogue by apply-

ing the comparison criteria indicated in the invitation to tender or project description

In competitive bidding the requirement for negotiations shall be that the negotiations and the

criteria to be complied with during the negotiations have been stated in the invitation to tender

or the project description

The contracting authorityentity shall ensure equal treatment of all candidates and tenderers

during the negotiations and shall not provide information in a manner that may compromise

the equal treatment of the participants in competitive bidding

Section 71

Invitation to tender

The invitation to tender shall be submitted in writing and drawn up to be sufficiently clear in

order to enable submission of commensurate and mutually comparable tenders The invitation

to tender shall contain all information that is particularly important in terms of the contracting

procedure and submitting the tender

The invitation to tender shall include the award criterion and where the criterion for the award is that of the economically most advantageous tender the comparison criteria and the ranking thereof The invitation to tender shall indicate a reasonable time allotted for the tenderers to submit a tender taking into consideration the scope and subject matter of the contract

The contracting authorityentity may charge a reasonable fee for the invitation-to-tender doc-

uments to recover the costs arising from the exceptionally extensive scope of the documenta-

tion the materials related thereto or other similar factors

Section 72

Drawing up the invitation to tender and submitting the tender

The invitation to tender and the tenders based thereon shall be drawn up in writing They may be executed orally only in exceptional circumstances if the written procedure is justifiably not appropriate If the invitation to tender or the tenders are not drawn up in writing a record shall be kept of the negotiations held with the tenderers the record shall indicate the infor-mation impacting the course of the procedure and the position of the tenderers

Section 73

Selection of a tender and a tenderer rejecting a tender

The contracting authorityentity may exclude from the competitive bidding any supplier which

taking into consideration the scope and object of the contract and other criteria does not pos-

sess the qualifications to carry out the contract The contracting authorityentity may exclude

32

from the competitive bidding any tender submitted by a tenderer who does not possess the

qualifications to carry out the contract when taking into consideration the scope and object of

the contract and other criteria

The contracting authorityentity shall award the contract to the tenderer whose tender has the

lowest price or complies with the comparison criteria set in the invitation to tender and is eco-

nomically the most advantageous

The contracting authorityentity may reject a tender which does not fulfil the essential condi-

tions set in the invitation to tender or has an abnormally low price in terms of the subject mat-

ter and scope of the contract Before it may reject a tender the contracting authorityentity

shall request in writing details of the constituent elements of a tender that is abnormally low in

price

PART IV

General provisions on decisions concerning contract awards conclusion of contracts

procurement rectification public access to the contract documents and further provi-sions

Chapter 11

Decisions concerning the award of contracts and notification thereof

Section 74

Decision concerning the award

The contracting authorityentity shall provide in writing the decisions affecting the position of

the candidates and tenderers and the results of the tendering procedure including the grounds for the outcome of the procedure

The decision or the related documentation shall state the factors that fundamentally affected

the outcome including the grounds for rejecting the candidate tenderer or tender and the

grounds on which the accepted contracts were compared As regards a decision concerning

asking for bids for a contract based on a framework arrangement stating the facts showing

that the selection and award criteria have been applied as required under Section 27 shall

suffice If the standstill period referred to in Section 79 applies to the contract the decision or

the related documents shall also state the period of time after which the contract may be awarded

The contracting authorityentity is not required to make a decision referred to in this Section

concerning a contract for the additional supplies referred to in Section 23 or Section 69(4)(12)

and additional service or contract referred to in (13) or the temporary arrangements for a con-tract referred to in Section 95

In contracts based on framework agreements the contracting authorityentity is not required to make the decision referred to in this Section if

1) the contract is awarded in accordance with the conditions laid down in the framework

agreement without asking for bids or

2) the competitive bidding is based on a framework agreement when the value of the contract

does not exceed the EU threshold

33

Section 75

Suspending the contract award procedure

The contract award procedure can be suspended only for verifiable and justifiable reason

The provisions of Section 74 concerning contract ruling shall apply to the suspension of the

contract award procedure

Section 76

Appeal instructions and instructions for request for rectification

Instructions for appeal shall accompany the decisions made by the contracting authori-

tyentity explaining how to refer a case to the Market Court for consideration contact infor-

mation of the contracting authorityentity for the notice referred to in Section 90 and instruc-

tions for seeking rectification (petition instructions) explaining how the candidate or tenderer can have the case submitted for reconsideration through procurement rectification

With regard to the issuing and amending appeal and petition instructions the provisions of

Chapter 3 of the Administrative Judicial Procedure Act (5861996) shall apply in terms of ap-

peals and the provisions of Chapter 7 of the Administrative Procedure Act (4342003) shall

apply in terms of petition instructions

Section 77

Notification of the decision concerning the contract award

The decision of the contracting authorityentity including the grounds for the decision and the

appeal and petition instructions shall be submitted in writing to the parties concerned The de-

cision including the aforementioned documents shall be submitted using the electronic con-

tact information which the candidate or tenderer has given to the contracting authorityentity

When using the electronic contact information the candidate and tenderer shall be considered

to have received notice of the decision and the accompanying documents on the date on

which the electronic message containing the aforementioned documents is available in the re-

cipients reception equipment such that the message can be handled Such a point in time shall

mean the date on which the message was sent unless a reliable explanation concerning the

malfunction of telecommunications links or another analogous reason because of which the

electronic message reached the recipient later When electronic notification is used the con-

tracting authorityentity shall include in the message a separate note concerning the date

when the message was sent

The decision including the grounds for it and the appeal and petition instructions may also be

sent via regular mail under the Administrative Procedure Act Candidates and tenderers shall

be considered to have received notification of the decision and the accompanying documents

on the seventh day from the date on which they were sent unless the candidate or tenderer

proves that the notification occurred at a later date

Notification on the decision of the contracting authorityentity shall be issued without undue

delay at the latest 15 days from the date on which the contracting authorityentity receives a written request concerning notification on the decision that was made

34

Chapter 12

Public contract

Section 78

Concluding a public contract

Having made the decision to award a public contract the contracting authorityentity shall

conclude the contract The contract is concluded upon signing a written agreement

Section 79

Standstill period

In the case of a contract above the EU threshold referred to Section 12 above the contract can

be concluded at the earliest 21 days from the date when the candidate or tenderer received or is considered to have received the decision and instructions for appeal (standstill period)

A standstill period shall not be applied in direct contract awards

The provisions of Section 92 shall apply to the effect of an appeal on concluding a contract

Section 80

Exceptions to the compliance with the standstill period

The standstill period need not be upheld if

1) the contract concerns a procurement carried out on the basis of the framework agreement in accordance with Section 27

2) the contract is awarded to the tenderer who submitted the only acceptable tender and no

other tenderers or candidates remain in the competitive bidding whose position would be af-

fected by the selection of a co-contractor

3) the contract concerns a procurement referred to in Section 68(2)

Section 81

Notification of direct awards and conclusion of public contracts

In direct awards exceeding the EU threshold the contracting authorityentity may after hav-

ing made the award decision send a notice for publication concerning the direct award of con-

tract before concluding the contract In that case the contract can be concluded at the earli-est 14 days after the publication of the notice in the Official Journal of the European Union

Chapter 13

Procurement rectification

Section 82

Rectification of a procurement

The contracting authorityentity may remove an incorrect decision or annul an award decision

made during the contracting procedure concerning the legal status of the candidates or ten-

35

derers and make a new decision (procurement rectification) if the award decision or other deci-

sion reached during the contracting procedure is based on an error that occurred in the appli-cation of the law

Amending an award decision or other decision does not require the consent of the party con-

cerned However an award decision or other decision cannot be amended through procure-

ment rectification if the contract has been concluded

Section 83

Initiation of procurement rectification

The contracting authorityentity may take up a procurement rectification on its own initiative

or in response to a demand of the party in question The contracting authorityentity shall noti-fy the concerned parties immediately of the initiation of a procurement rectification

A subcontractor does not have the status of a concerned party referred to in subsection 1 of this section in terms of the matter concerning the contract

The concerned party shall present the demand within 14 days after receipt of the notification

of the award decision or other decision made by the contracting authorityentity during the

contracting procedure The contracting authorityentity itself may amend the award decision or

other decision no later than 60 days after the date the decision concerning the procurement rectification is made

Appealing the case to the Market Court does not prevent a procurement rectification or its pro-

cessing A procurement rectification may also apply to a decision of the contracting authori-

tyentity that has become legally binding if the case has not been submitted to the Market

Court for ruling

Section 84

Effect of the processing of procurement rectification on the proceedings in the Mar-ket Court

The initiation and processing of a procurement rectification do not affect the time limit within

which the concerned party has the right pursuant to this Act to submit an appeal against the

decision to the Market Court

If the award decision or other decision that was reached during the contract award procedure

is to be amended and has been appealed against before the Market Court the Market Court

shall be notified of the processing of the case through procurement rectification and informed

of the decision reached In processing a procurement rectification the contracting authori-

tyentity may prohibit the enforcement of the award decision or other decision or order it to be

suspended The Market Court shall be notified of a prohibition or suspension of enforcement if an appeal has been lodged against the decision in the Market Court

If the contracting authorityentity amends its award decision or other decision by means of a

procurement rectification such that as a result the appellant to the Market Court no longer has

the need for judicial relief or the need for a justified decision the Market Court may decline to

process such a case without giving a ruling on the principal claim

Section 85

The application of procurement rectification to other contracts

A procurement rectification can also be applied to amend an award decision or other decision

made by the contracting authorityentity during the contracting procedure to which this Act

36

shall not apply pursuant to Section 6(2) and Sections 7 8 or 13 A decision made on account

of such a contract rectification may not be appealed against in the Market Court or under the Administrative Judicial Procedure Act or Local Government (Act 3651995)

Chapter 14

Public access to the contract documents

Section 86

Application of the provisions concerning public access to the contract documents

The Act on the Openness of Government Activities (6211999) shall apply to public access to

the documents of the contracting authorityentity and the fees charged for the documents if

the contracting authorityentity is the authority referred to in Section 4 of the aforementioned

Act or if it is obliged to comply with that Act on the basis of a provision contained elsewhere in the Act

In terms of the right of parties other than the participants in the competitive bidding conducted

by the contracting authorityentity referred to in subsection 1 to have access to the docu-

ments drawn up and received for processing of the tender and the confidentiality obligation of

those employed by the contracting authorityentity the provisions of the Act on the Openness

of Government Activities shall apply to the right of concerned parties to have access to the

document to how public access to the document is determined and to the processing and resolving of the matter concerning access to information

The decision of the contracting authorityentity which has resolved the matter concerning ac-

cess to information can be appealed in accordance with the provisions of Section 33 of the Act

on the Openness of Government Activities The Supreme Administrative Court in whose judicial

district the contracting authorityentity is located is the competent Supreme Administrative

Court for considering the appeal submitted on the basis of a decision made by a party other

than the contracting authorityentity acting as an authority

Chapter 15

Appealing and the implications thereof

Section 87

Parties entitled to appeal

A concerned party may appeal the matter to the Market Court by issuing a complaint A sub-

contractor does not have the position of an interested party referred to in subsection 1 of this Section in terms of the matter concerning the contract

In matters concerning control procedures of the European Union the Ministry of Economic Af-

fairs and Employment may also refer the matter to the Market Court for consideration

Section 88

Object of the appeal

An appeal may be lodged before the Market Court against an award decision of the contracting

authorityentity referred to in this Act or other decision reached by the contracting authori-

tyentity during the contracting procedure which affects the status of the candidate or the ten-derer

37

An appeal may not be lodged before the Market Court against an award decision or other deci-

sion of the contracting authorityentity which concerns only the preparation of the contracting

procedure An appeal may not be lodged against a decision or other measure taken by the

supplier selected as a contracting party concerning a subcontracting agreement or an award

decision or determination made by the contracting authorityentity during the implementation of the contract

A contract based on a framework agreement referred to in Section 27 above and a contract

referred to in Section 68(2) may not be appealed unless a processing authorisation is issued by the Market Court The authorisation shall be issued if

1) the processing of the case is important in terms of applying the Act in other similar matters

or

2) there is a cogent reason for it related to the procedures of the contracting authorityentity

Section 89

Time period for appeal

Unless otherwise prescribed in this Section an appeal must be lodged in writing within 14 days

from the date when the candidate or tenderer received the notice concerning the contract with the instructions for appeal

If the contracting authorityentity has concluded a public contract after the contract decision

was issued on the basis of Section 80 point 1 without complying with the standstill period

the appeal shall be lodged within 30 days from the date when the tenderer has received notice

of the decision with the instructions for appeal

An appeal before the Market Court shall be lodged within six months of the date of the contract

decision provided that the candidate or tenderer has received notice of the contract decision

and the contract decision or appeal instructions were materially deficient or the appeal instruc-tions have been missing altogether

If the contracting authorityentity has with regard to a contract above the EU threshold re-

ferred to in Section 12 above delivered a notice regarding a direct award of contract for publi-

cation in the Official journal of the European Union the complaint must be lodged within 14 days from the publication of the notice

If the notice referred to in subsection 4 has not been published the appeal concerning a direct award of contract shall be lodged

1) within 30 days of the date of publication of a contract-award notice has been published in

the Official Journal of the European Union or

2) within six months from the conclusion of the contract at the latest

Section 90

Notification of appeal to the contracting authorityentity and the list of procurement

cases

The appellant in a contract-related matter must notify the contracting authorityentity in writ-ing of referring the case to the Market Court for consideration

The notification must be delivered to the contracting authorityentity at the latest when the

complaint concerning the contract is delivered to the Market Court The notification shall be delivered to the address provided by the contracting authorityentity

38

The Market Court shall maintain and publish a list which is as comprehensive and up-to-date

as possible of contract-related matters pending at the Market Court

Section 91

The contracting authorityentity as the opponent and compensation of legal costs

In the proceedings regarding contract-related matters the contracting authorityentity shall be considered the opponent of the party or agency lodging the appeal

The provisions of Section 74 subsections 1 and 2 of the Administrative Judicial Procedure Act shall apply to the compensation of legal costs regarding contract-related matters

The provisions of Section 74 subsections 1 and 2 of the administrative Judicial Procedure Act

concerning public authorities or other public parties shall apply to the decision concerning the

liability to provide compensation for the legal costs of the opponent If one contracting authori-

tyentity has been responsible for the contracting procedure on behalf of the other contracting

authorities the obligation regarding compensation of legal costs may be placed on the con-

tracting authorityentity which acted on behalf of the other contracting authorities

Section 92

The effect of the appeal on concluding the contract

In case of a contract where the standstill period or the time limit referred to in section 81 must

be observed the contracting authorityentity may not conclude the contract if the matter has

been brought up for consideration by the Market Court

If the Market Court decides a case concerning enforcement or decides on the principal claim

before the standstill period or the time limit referred to in Section 81 has expired the contract-

ing authorityentity shall observe the standstill period or the time limit referred to in Section

81 until the end of the period notwithstanding the ruling of the Market Court

Section 93

Interim decisions of the Market Court

While the appeal is under consideration the Market Court may prohibit suspend or allow the

implementation of the decision concerning the contract award or order the contracting proce-

dure to be suspended otherwise as an interim measure for the duration of the proceedings in the Market Court

When deciding on the measure referred to in subsection 1 the Market Court shall take into

consideration that the harm caused by the measure to the opponent the rights of third par-

ties the security of the state or the public interest may not outweigh its benefits

However the decision prescribed in subsection 1 of this Section cannot be carried out in the case of a contract referred to in Section 68(2) of this Act

A legally trained member of the Market Court may alone issue a ruling as an interim measure

Section 94

Interim commitment of the contracting authorityentity

While the appeal is under consideration the contracting authorityentity may provide a written

undertaking to the Market Court stating that it will not enforce the decision concerning the contract for as long as the matter is pending in the Market Court

39

If the contracting authorityentity provides the Market Court with the undertaking referred to

in subsection 1 the Market Court will not issue without a specific reason a decision on the

obligation to interim prohibition on implementing the decision to award the contract

Section 95

Temporary organisation of a contract

If an appeal has been lodged against a contract before the Market Court the contracting au-

thorityentity may temporarily organise the contract by ordering it from a supplier who partici-

pated in the contracting procedure or from a previous supplier if the nature of the contract is

such that executing the contract cannot be postponed for the duration of the Market Court pro-ceedings

Temporary contract arrangements must not hinder the execution of the following items by means of a decision of the Market Court

1) the decision of the contracting authorityentity to cancel the contract in full or in part

2) prohibit the contracting authorityentity from applying any erroneous item included in the contract document or otherwise complying with an incorrect procedure or

3) require the contracting authorityentity to rectify its incorrect procedure

Section 96

Sanctions imposed by the Market Court

If during the contract procedure actions have been taken which are against this Act or the provisions based thereon or against European Union legislation the Market Court may

1) cancel the decision of the contracting authorityentity in full or in part

2) prohibit the contracting authorityentity from applying any erroneous item included in the contract document or otherwise complying with an incorrect procedure

3) require the contracting authorityentity to correct its erroneous procedure

4) order the contracting authorityentity to pay a compensatory fee to the party which would

have had a genuine chance to win the bidding competition had the procedure been correct

5) impose an ineffectiveness sanction on the contracting authorityentity

6) order the contracting authorityentity to pay an infringement fine to the state

7) reduce the contract term to end after a period of time specified by the Market Court has

passed

The provisions of Sections 97ndash100 shall apply to determining the sanctions mentioned in sub-

section 1 points 4ndash7 above When determining these sanctions the Market Court may consid-

er the contract to have been concluded on the basis of specific circumstances provided that

the contracting authorityentity has especially commenced the implementation of the contract

The ineffectiveness sanctions infringement fine and reduction of contract terms may only be

issued in contracts exceeding the EU thresholds referred to in Section 12 However an ineffec-tiveness sanction cannot be imposed in a service contract in accordance with Annex B

Only a compensatory fee can be imposed in a contract referred to in Section 68(2) of this Act

40

Section 97

Compensation

Provision for compensation may be made if the harm caused to the contracting authori-

tyentity rights of third parties state security and the public interest by the measure defined

in Section 96(1)(1ndash3) is considered to outweigh the benefits or if the petition has been initiat-

ed following the conclusion of the contract With respect to setting the amount of the compen-

satory fee account shall be taken of the nature of the infringement or omission by the con-

tracting authorityentity the value of the contract in question and the costs and damages in-

curred by the petitioner The Market Court may however decide not to prove for compensa-

tion if the contracting authorityentity has refrained from implementing the contract during the proceedings in the Market Court

Without a specific reason the amount of compensation shall not exceed 10 percent of the val-

ue of the contract

Section 98

Ineffectiveness

The Market Court may declare a contract ineffective if

1) the contracting authorityentity has made a direct award of contract without the basis re-ferred to in this Act and the procedures referred to in Section 81

2) the contracting authorityentity has concluded the contract although there is an obligation in the contract to observe a standstill period

3) the contracting authorityentity has concluded the contract contrary to Section 92 although

the procurement case has been submitted to the Market Court for a decision

In addition a requirement in the situation referred to in subsection 1 points 2 and 3 above is

that the contracting authorityentity has made another infringement contrary to this Act which has affected the chances of the appellant to win the contract

If the contracting authorityentity has concluded the contract in a competition based on the

framework agreement on the basis of Section 80 without observing the standstill period and if

a breach has been committed in the competition in respect of Section 27(2 or 3) such that this

has affected the chances of the appellant to win the contract the Market Court may declare the contract ineffective

The Market Court shall decide to which contractual obligations ineffectiveness shall apply Inef-

fectiveness shall apply only to unfulfilled contractual obligations

Section 99

Non-imposition of ineffectiveness

In the situations referred to in Section 98 above the Market Court may decide not to impose

ineffectiveness for compelling reasons related to the public interest or state security Economic

interests which are directly related to the contract may be deemed compelling only if ineffec-tiveness of the contract would exceptionally have inequitable consequences

The Market Court may not impose ineffectiveness if it would result in serious endangerment of

the implementation of a defence and security project essentially important with respect to

state security

Section 100

41

Infringement fines and reduction of the contract term

The Market Court may order a contracting authorityentity to pay the state an infringement

fine if

1) the Market Court has declared the contract ineffective

2) the contracting authorityentity has concluded the contract although there is an obligation in the contract to observe a standstill period

3) the contracting authorityentity has concluded the contract contrary to Section 92 although the procurement case has been submitted to the Market Court for a decision or

4) the Market Court has decided not to declare the contract ineffective for compelling reasons related to the public interest or state security in accordance with Section 99

In the situation referred to in subsection 1 point 4 above the Market Court may in addition to

or instead of imposing a sanction reduce the contract term so that it ends after a period of time specified by the Court

The Market Court may order a contracting authorityentity to pay the state an infringement

fine or reduce the contract term so that it ends after a period of time specified by the Court

this applies to service contracts referred to in Annex B of this Act the value of which exceeds

the EU threshold as defined in Section 12 if the contracting authorityentity

1) has made a direct award of contract without the basis referred to in this Act and the proce-dures referred to in Section 81 not having been complied with in the direct award

2) has concluded the contract although there is an obligation in the contract to observe the standstill period

3) has concluded the contract contrary to Section 92 although the procurement case has been submitted to the Market Court for a decision or

4) has concluded the contract in a competition based on a framework agreement on the basis

of Section 80 without observing the standstill period and if a breach has been committed in the

competition in respect of Section 27(2 or 3) such that this has affected the chances of the ap-pellant to win the contract

In addition a requirement in the situation referred to in subsection 3 points 2 and 3 above is

that the contracting authorityentity has made another infringement contrary to this Act which

has affected the chances of the appellant to win the contract

With respect to issuing a sanction the Market Court shall take into account the nature of the

mistake or omission by the contracting authorityentity and the value of the contract in ques-

tion The sanction shall not exceed 10 percent of the value of the contract

Section 101

Allocation of sanctions and cumulative effect

If one contracting authorityentity has been responsible for the contracting procedure on be-

half of the other contracting authorities the obligation to compensate for legal costs can be

placed on the contracting authorityentity that acted on behalf of the other contracting authori-

ties

With respect to the sanctions referred to in this Act the Market Court shall take into considera-

tion that the cumulative effect may not become unreasonable for the contracting authori-

tyentity or its contracting party

42

Section 102

Conditional fine

The Market Court may impose a conditional fine in order to underline the importance of com-

plying with the prohibitions or obligations referred to in this Act The provisions of the Act on

Conditional Fines (11131990) shall apply to the imposing of and sentencing to the payment of

conditional fines

If one contracting authorityentity has been responsible for the contracting procedure on be-

half of the other contracting authorities the obligation to compensate for costs can be placed

on the contracting authorityentity that acted on behalf of the other contracting authorities

Section 103

Notification of the Market Courts ruling

The ruling of the Market Court along with the instructions for appeal shall be verifiably notified under the provisions of the Administrative Judicial Procedure Act

With the consent of the appellant and the contracting authorityentity the Market Courts deci-

sion together with the instructions for appeal may be publicised using the electronic contact

information the aforementioned parties have provided to the Market Court

When electronic contact information is used the appellant and the contracting authorityentity

shall be deemed to have been notified of the decision and instructions for appeal on the date

on which the message concerning the matter is available in the recipientsrsquo reception equipment

so that the message can be handled The provisions of Section 77(1) shall apply to electronic

notification

Section 104

Prohibition to appeal

A case that is within the jurisdiction of the Market Court cannot be appealed against under the

provisions of the Local Government Act or the Administrative Judicial Procedure Act

A decision or ruling concerning a contract which has been excluded from the scope of applica-

tion of this Act on the basis of Section 6(2) and Sections 78 or 13 may not be appealed under

the Administrative Judicial Procedure Act or the Local Government Act The subcontractor may

not under the Administrative Judicial Procedure Act or the Local Government Act appeal the

decision or action taken by the contracting authorityentity concerning the subcontract

Section 105

Appeals against the decisions of the Market Court

Appeals against a ruling of the Market Court can be lodged in the Supreme Administrative Court in accordance with the Administrative Judicial Procedure Act

As referred to in Section 93(1) an appeal cannot be lodged against the ruling by the Market

Court in the Supreme Administrative Court A ruling by the Market Court does not prevent the

case from being reconsidered by the Market Court if the grounds for the previous ruling have

changed

If the Market Court has ruled that it will not grant the processing authorisation referred to in

Section 88(3) then an appeal against this ruling can only be lodged if the Supreme Adminis-

trative Court grants a leave to appeal

43

Section 106

Application of the Administrative Judicial Procedure Act

The Administrative Judicial Procedure Act shall apply to appeals unless otherwise provided by this Act

Section 107

Implementation of rulings

A ruling of the Market Court has to be observed notwithstanding any appeal unless the Su-

preme Administrative Court orders otherwise The ruling of the Market Court issuing the sanc-

tion referred to in Section 96(1)(4ndash7) may only be implemented on the basis of a final ruling

The implementation of a ruling concerning a sanction shall be supervised by the Legal Register

Centre The Legal Register Centre must be informed of any ruling by the Market Court and

Supreme Administrative Court to issue a sanction

Section 108

Compensation for damages

Those who cause damage to a candidate tenderer or supplier shall be liable to pay compensa-

tion for the damage they have caused while acting in breach of this Act or any regulations based thereon or the European Union law

However when the claim for damages refers to costs incurred as a result of the tendering pro-

cedure the candidate or tenderer is entitled to compensation if it can provide proof of the in-

correct procedure as defined in subsection 1 and that had the procedure been correct it would have had a genuine chance to win the contract

In respect of the cases defined in subsection 1 and 2 a Court of first instance shall be the

competent court in accordance with Chapter 10 of the Code of Judicial Procedure

Chapter 16

Further provisions

Section 109

Disclosure of information

Notwithstanding the provisions concerning confidentiality provided for in the Act on the Open-

ness of Government Activities or in any other act the contracting authorityentity shall supply

statistics and other information concerning the different stages of the contract and performed

contracts to the Finnish authorities and European Union bodies to monitor contracts and ex-

change information on the scale and to the time limit required by European Union law Pursu-

ant to this Act the Ministry of Economic Affairs and Employment has the right to forward in-

formation it has received to the European Union authorities notwithstanding the regulations on confidentiality

The contracting authorityentity shall draw up a written report on each contract and framework

agreement which includes essential information on the contract contract procedure and the

candidates and tenderers who participated as well as on the decisions made in connection with

44

the contract The report and its main content shall be forwarded on request to the European

Commission A separate report is not required if corresponding information can be found in the

contract decision or other documents

To document the course of the realised contract procedure the contracting authorityentity

shall implement necessary measures in an electronic format

More specific rules are laid down in a Government decree on the obligation to provide statistics

and the responsibility of the contracting authorityentity to draw up reports on contract proce-

dures and contract decisions as referred to in subsection 1 which are to be forwarded to the

European Union bodies

Section 110

Entry into force and transitional provisions

This Act enters into force on 1 January 2012

If a contract procedure is started before the entry into force of this Act the provisions that

were in force at the time when this Act entered into force shall be applied The contract proce-

dure shall be deemed to have commenced when the contract notice was published A contract

which does not require the publication of the contract notice shall be deemed to have com-

menced when the invitation to tender or a meeting is sent or negotiations with suppliers begin

Measures necessary for the implementation of this Act may be undertaken before the Actrsquos

entry into force

45

ANNEX A

Primary services

Group No

Matter CPV Reference No

1 Maintenance and repair services 50000000-5 50100000-6-50884000-4 (except 50310000-1-50324200-4 and 50116510-9 50190000-3 50229000-6 50243000-0) and 51000000-9-51900000-1

2 Services related to international military assistance

75211300-1

3 Defence services military defence services and civil defence services

75220000-4 75221000-1 75222000-8

4 Investigation and security services 79700000-1-79720000-7

5 Land transport services 60000000-8 60100000-9-60183000-4 (except 60160000-7 60161000-4) and 64120000-3-64121200-2

6 Air transport services for passengers and freight except transport of mail

60400000-2 60410000-5-60424120-3 (except 60411000-2 60421000-5) 60440000-4-60445000-9 and 60500000-3

7 Transport of mail by land and by air 60160000-7 60161000-4 60411000-2 60421000-5

8 Railway transport services 60200000-0-60220000-6

9 Sea transport services 60600000-4-60653000-0 and 63727000-1-63727200-3

10 Support and auxiliary transport services 63100000-0-63111000-0 63120000-6-63121100-4 63122000-0 63512000-1 and 63520000-0-6370000-6

11 Telecommunications services 64200000-8-64228200-2 72318000-7 and 72700000-7-72720000-3

12 Financial services insurance services 66500000-5-66720000-3

13 Data-processing and related services 50310000-1-50324200-4 72000000-5-72920000-5 (except 72318000-7 and 72700000-7-72720000-3) 79342410-4 9342410-4

14 Research and development services(sup1) and evaluation tests

73000000-2-73436000-7

15 Accounting auditing and bookkeeping services

79210000-9-79212500-8

16 Management consulting(sup2) and related services

73200000-4-73220000-0 79400000-8-79421200-3 and 79342000-3 79342100-4 79342300-6 79342320-2 79342321-9 79910000-6 79991000-7 98362000-8

17 Architectural services engineering services and integrated engineering services urban planning and landscape architectural services related scientific and technical consulting services technical testing and analysis services

71000000-8-71900000-7(except 71550000-8) and 79994000-8

18 Building cleaning services and building and property management services

70300000-4-70340000-0 and 90900000-6-90924000-3

19 Sewage and refuse disposal services 90400000-1 to 90743200-9 (except 90712200-3)

46

sanitation and similar services 90910000-9-90920000-2 and 50190000-3 50229000-6 50243000-0

20 Training and simulation services in the fields of defence and security

80330000-6 80600000-0 80610000-3 80620000-6 80630000-9 80640000-2 80650000-5 80660000-8

(sup1) Except the research and development services referred to in Section 13(2)(5) (sup2) Except arbitration and conciliation services ANNEX B Secondary services

Group No

Matter CPV Reference No

21 Hotel and restaurant services 55100000-1-55524000-9 and 98340000-8-98341100-6

22 Support and auxiliary transport services 63000000-9-63734000-3 (except 63711200-8 63712700-0 63712710-3) 6372700-1-63727200-3 and 98361000-1

23 Legal services 79100000-5-79140000-7

24 Employment and personnel recruitment services(sup1)

79600000-0-79635000-4 (except 79611000-0 79632000-3 79633000-0) and 98500000-8-98514000-9

25 Health and social services 79611000-085000000-9 and -85323000-9 (except 85321000-5 and 85322000-2)

26 Other services

(sup1) Except employment contracts

47

ANNEX C NACEsup1ordm

Main category F CONSTRUCTION CPV code

2-digit level

3-digit level

4-digit level

Description Comments

45 Construction This two-digit level includes the following construction of new buildings and works reconstruction and common repairs

45000000

451 Site preparation

45100000

4511 Demolition and wreck-ing of buildings earth moving

This four-digit level includes the following - demolition of buildings and other structures - clearing of building sites and earth moving site excavation landfill and levelling trench dig-ging quarrying blasting etc - site preparation for mining

- overburden removal and other development and prepa-ration of mines and mining sites

This four-digit level also includes - building site underdrainage - drainage of agricultural or forestry land

45110000

4512 Test drilling This four-digit level includes the following - test drilling test boring and sampling for construction geophysical geological or similar purposes This four-digit level excludes the following - drilling of oil or gas wells comp 1120 - water well drilling 4525

45120000

sup1deg Council regulation (EEC) No 303790 (Official Journal of the European Union 293 24 October 1990 p 1) on the statistical classification of economic activities in the European Community issued on 9 October 1990 regulation as amended by Commission Regulation (EEC) No 76193 (Official Journal of the European Union L 83 3 April 1993 p 1) If there are differences of opinion between CPV and NACE NACE nomenclature shall apply

48

- shaft sinking comp 4525 - oil and gas field exploration geophysical geological and seismic surveying comp 7420

452 Building complete constructions or parts thereof

45200000

4521 Building work This four-digit level includes the following - Construction of all types of buildings - civil engineering and hydraulic engineering works - building of bridges including those for elevated highways metro tunnels - construction of long-distance pipelines communication cables and long-distance networks for power lines - construction of long-distance pipelines telecommunication ca-bles and municipal network power lines related installation work - on-site assembly and erection of pre-fabricated constructions This four-digit level excludes the following - services related to oil and gas extraction comp 1120 - erection of complete prefabricat-ed constructions from self-manufactured parts not of con-crete comp 20 26 28 - construction work other than buildings for stadiums swimming pools gymnasiums tennis courts golf courses and other sports installations comp 4523 building installation comp 453 - building completion comp 454 - architectural and engineering services comp 7420 - project management for construction comp 7420

45210000 Except 45213316 45220000 45231000 45232000

4522 Erection and covering of roofs

This four-digit level includes the following - erection of roofs - roof covering - waterproofing

45261000

49

4523 Construction of highways streets airports and sports equipment

This four-digit level includes the following - construction of highways streets other vehicular and pedestrian ways - construction of railways - construction of airfield runways - construction work other than build-ings for stadiums swimming pools gymnasiums tennis courts golf courses and other sports installations - painting of markings on road surfaces and car parks This four-digit level excludes the following - preliminary earth moving comp 4511

45212212 and DA03 45230000 except 45231000 45232000 45234115

4524 Construction of water projects

This four-digit level includes the following building works - construction of waterways harbour and river works marinas locks etc - construction of dams and breakwaters - dredging - subsurface work

45240000

4525 Other construction work

This four-digit level includes the following - construction activities specialising in one aspect common to different kinds of structures requiring specialised skill or equipment - construction of foundations including pile driving - water well drilling and construction shaft sinking - erection of non-self-manufactured steel frame elements - steel bending - bricklaying and stone setting - erecting and dismantling of scaffolds and work platforms including rental of scaffolds and work platforms - erection of chimneys and industrial ovens This four-digit level excludes the following - rental of scaffolds without erecting and dismantling comp 7132

45250000 45262000

453 Building installation 45300000

4531 Installation of electri-cal wiring and fittings

This four-digit level includes the installation in buildings or other

45213316 45310000

50

construction projects of - electrical wiring and fittings - telecommunications systems - electrical heating systems - residential antennas - fire alarms - burglar alarm systems - lifts and escalators - lightning conductors etc

Except 45316000

4532 Insulation work This four-digit level includes the following - installation in buildings or other construction projects of thermal sound or vibration insulation This four-digit level excludes the following - waterproofing comp 4522

45320000

4533 Plumbing This four-digit level includes the installation in buildings or other construction projects of the following - plumbing and sanitary equipment and fittings - gas fittings - heating ventilation refrigeration or air-conditioning equipment and ducts - sprinkler systems This four-digit level excludes the following - installation of electrical heating systems comp 4531

45330000

4534 Other installation work

This four-digit level includes the fol-lowing - installation or other construction of illumination and signalling systems for roads railways airports and harbours - installation in buildings or other construction projects of fittings and fixtures

45234115 45316000 45340000

454 Building completion 45400000

4541 Plastering This four-digit level includes the following - application in building or other construction projects of interior and exterior plaster or stucco and other similar lathing materials

45410000

4542 Joinery installation This four-digit level includes the following - installation of non-self-manufactured doors windows door

45420000

51

and window frames fitted kitchens staircases and shop fittings made of wood or other materials - completion of interiors such as ceilings wooden wall coverings wall paneling installation of movable partitions etc This four-digit level excludes the following - laying of parquet and other wooden floor coverings comp 4543

52

4543 Floor covering and wall upholstery

This four-digit level includes the following - covering or tiling of buildings or other structures using - ceramic concrete or stone wall or floor tiles or stones - parquet or other wooden floor covering - wall-to-wall carpeting or linoleum also rubber or plastic floor covering - wall or floor covering made of mosaic marble granite or slate - wallpaper

45430000

4544 Painting and glazing This four-digit level includes the following - interior and exterior painting of buildings - exterior painting of other structures - installation of mirrors glass etc This four-digit level excludes the following - installation of windows comp 4542

45440000

4545 Other building completion

This four-digit level includes the following - construction of private swimming pools - cleaning the exterior surfaces of buildings using steam sandblasting or other similar method - other building completion work not classified elsewhere This four-digit level excludes the following - cleaning of buildings and other structures comp 7470

45212212 and DA03 45450000

455 Rental of construction or dismantling equip-ment with operators

45500000

4550 Rental of construction or dismantling equip-ment with operators

This four-digit level excludes the following - rental of construction or dismantling machines and equipment without operators comp 7132

45500000

23

Section 50

Requirements and references relating to the suitability of candidates and tenderers

The contracting authorityentity may set requirements relating to the candidates or tenderers

financial and economic standing technical capacity professional ability information security

security of supply and requirements concerning quality and request that the candidates and tenderers submit the related reports

In order to verify the requirements and that the requirements are satisfied the references re-

quested shall be related to the candidates or tenderers ability to perform the contract and

they shall be in proportion to the subject matter purpose and scope of the contract Require-

ments and references shall be indicated in the contract notice Candidates or tenderers failing

to satisfy the minimum requirements set by the contracting authorityentity shall be excluded from participation in the competitive bidding

The contracting authorityentity shall indicate in the contract notice any objective and non-

discriminatory criteria and rules which it shall apply in restricted procedures negotiated pro-

cedures or in the competitive dialogue procedure to admit candidates or tenderers to the com-

petitive bidding or negotiations The contracting authorityentity shall state the minimum

number of candidates and where appropriate also the maximum number of candidates

The contracting authorityentity may invite candidates or tenderers to supplement or clarify

the references and other documents

Section 51

Register data

The contracting authorityentity may request that the candidate or tenderer prove under the law of the country in which it is established that

1) it is registered in a professional or trade register

2) it carries out a trade by providing a declaration on oath or certificate and

3) it is entitled to provide a service in the country in which it is established by providing a li-cense or a certificate of membership of an organisation

Section 52

Economic and financial standing

The contracting authorityentity may request that a candidate or tenderer furnish proof of its financial and economic standing by references such as

1) a statement from a bank or credit institution or evidence of professional risk indemnity in-surance

2) a profit and loss account balance sheet annual report financial statements and group fi-

nancial statements if these must be published in the country in which the candidate or ten-

derer is established and

3) a statement of the undertakings overall turnover and turnover in the area that is the object

of the contract for a maximum of the three most recent fiscal periods if information on these turnovers is available

If for any valid reason the candidate or tenderer is unable to provide the documents request-

ed by the contracting authorityentity it may demonstrate its economic and financial standing

by any other document which the contracting authorityentity considers appropriate

24

Section 53

Technical capacity and professional ability

The contracting authorityentity may request that the candidate or tenderer furnish proof of its

technical capacity and professional ability by the following documents

1) the educational and professional qualifications of the candidate or tenderer or those of the

management of the undertaking and in particular those of the persons responsible for man-

aging the work or providing services or products that involve siting or installation functions or services

2) a list of the works carried out over a period not exceeding the past five years accompanied

by a certificate of satisfactory execution of the most important works the certificate shall indi-

cate the value date and site of the works and shall specify whether they were carried out ac-

cording to the rules of the trade and properly completed where appropriate a competent au-thority shall submit these certificates to the contracting authorityentity directly

3) a list of the principal deliveries carried out or the main services provided over a period not

exceeding the past five years with the sums dates and recipients involved where the recipi-

ent was a public body the list shall be verified by the competent authority where the recipient

was a private purchaser by the purchasers certification or failing this by a declaration of the

candidate or tenderer

4) an indication of the technical experts or bodies involved whether or not they belong directly

to the candidate or tenderer especially those responsible for quality control and in the case of

public works contracts those experts and bodies upon whom the contractor can call in order to carry out the work

5) the candidates or tenderers description of the tools equipment and actions by which it

ensures quality as well as the research and testing equipment required to implement the con-tract and the internal rules regarding industrial property and copyrights

6) a certificate for the inspection carried out by the candidate or tenderer or on its behalf by a

competent official body of the country in which the candidate or tenderer is established regard-

ing the candidatersquos or tendererrsquos production capacities technical capacity research or trial sys-

tems or quality control measures which it will implement

7) a statement of the average annual manpower of the service provider or contractor and the number of managerial staff for the last three years as a maximum

8) a statement of the tools fixtures technical equipment number of personnel know-how and

sources available to the service provider or tenderer for carrying out the contract for fulfilling

the additional needs that may arise from any crisis that the contracting authorityentity may

undergo or for the maintenance modernisation or adaptation of the products that are the ob-

ject of the contract in addition information on the geographic location of the tools fixtures

technical equipment number of personnel know-how and sources in the event that these are located outside of the European Union

9) with regard to the products to be supplied samples descriptions and photographs the au-

thenticity of which must be certified if the contracting authorityentity so requests and certifi-

cates drawn up by an official quality control institute or agencies of recognised competence

attesting to the conformity of the products to be supplied with technical specifications or standards and

10) with regard to public contracts having as their object supplies requiring a service or siting

or installation work an indication of professional ability efficiency experience and reliability

If appropriate to the object of the contract the contracting authorityentity may request that

the candidate or tenderer provide an indication of the environmental management measures to

be applied when performing a public works or service contract Should the contracting authori-

tyentity require the production of certificates drawn up by independent bodies attesting the

compliance of the tenderer with environmental management standards it shall refer to the

Community eco management and audit scheme (EMAS) or to the environmental management

standards based on relevant European or international standards certified by bodies conform-

25

ing to Community law or relevant European or international standards concerning certification

The contracting authorityentity shall accept equivalent certificates from bodies established in

other European Union member states and other evidence of equivalent environmental man-agement measures from the suppliers

If appropriate to the object of the contract the contracting authorityentity may request that

the candidate or tenderer provide an indication of the quality assurance measures Should the

contracting authorityentity require the production of certificates drawn up by independent

bodies attesting to the compliance of the tenderer with quality assurance standards the con-

tracting authorityentity shall refer to quality assurance systems based on relevant European

standards series certified by bodies conforming to the European standards series concerning

certification The contracting authorityentity shall accept equivalent certificates from bodies

established in other European Union member states and other evidence of equivalent quality assurance measures from the tenderers

If for any valid reason the candidate or tenderer is unable to provide the documents request-

ed by the contracting authorityentity it may demonstrate its economic and financial standing by any other document which the contracting authorityentity considers appropriate

Section 54

Requirements on information security set for candidates and tenderers

If classified documents are submitted drawn up or otherwise dealt with to carry out a call for

tender the contracting authorityentity may set requirements for candidates or tenderers to

meet the information security requirements laid down for authorities The contracting authori-

tyentity may request candidates or tenderers to provide commitments or information which

prove their capacity to meet the information security requirements

For candidates who have not obtained the certificate or commitment referred to in Section 1

the contracting authorityentity may grant additional time to obtain the certificate or commit-

ment In that case a deadline shall be set for the delivery of these In addition to the com-

mitments and information provided by the candidate the contracting authorityentity may render and consider any supplemental investigations it has conducted

Section 55

Legal form of the candidate and the tenderer and indication of the responsible per-sons

A candidate or tenderer which under the legislation of the country in which it is established is

entitled to provide the services that are the object of the contract may not be rejected solely

on the ground that under the legislation of the European Union member state in which the contract is awarded it would be required to be either a natural or legal person

In the case of public service and public works contracts as well as public supply contracts in-

volving siting and installation operations the contracting authorityentity may require candi-

dates and tenderers to indicate in the tender or the request to participate the names and pro-

fessional qualifications of the persons responsible for carrying out the services or the work in question

Section 56

Groups participating in the competitive bidding and reliance on the capacities of oth-er entities

Groups of suppliers may submit tenders or put themselves forward as candidates The con-

tracting authorityentity may not require these groups of candidates or tenderers to assume a

specific legal form in order to submit a tender or a request to participate However the group

may be required to do so during the term of the contract to the extent that this change is necessary for the satisfactory performance of the contract

26

A candidate or tenderer may rely on the capacities of other entities regardless of the legal na-

ture of the links it has with them to carry out the contract A group may rely on the abilities of

participants in the group or in other entities in order to perform the contract The candidate or

tenderer or a group thereof shall furnish the contracting authorityentity with proof that the

requirements relating to economic and financial standing technical capacity and professional

ability and other requirements are satisfied This proof may include contracts between compa-

nies or other binding documents demonstrating that the capacities to satisfy the requirements are accessible by the candidates or tenderers

Section 57

Selecting the tender

The contract awarded shall be either the economically most advantageous tender from the

point of view of the contracting authorityentity in accordance with the comparison criteria

linked to the object of the contract or the lowest in price When the award is made to the eco-

nomically most advantageous tender the criteria may include for example quality price

technical merit aesthetic and functional characteristics environmentally friendly characteris-

tics running costs costs associated with a long life cycle cost effectiveness after-sales ser-

vice and technical assistance delivery date delivery period and period of completion security of supply and interoperability and functional characteristics

The contracting authorityentity shall specify in the contract notice or the invitation to tender

documentation the comparison criteria and the relative weighting which it gives to each of the

criteria chosen to determine the economically most advantageous tender In the competitive

dialogue procedure the equivalent information shall be specified in the contract notice or the

project description The weighting may also be specified by indicating a reasonable range If it

is not reasonably possible to specify the relative weighting of the comparison criteria they

shall be specified in the order of importance

Section 58

Abnormally low tenders

The contracting authorityentity may reject tenders that are abnormally low in relation to the

quality and scope of the contract Before it may reject a tender the contracting authori-

tyentity shall request in writing a written report from the tenderer on the constituent ele-ments of the tender

The request referred to in subsection 1 may relate in particular to the economic and technical

solutions chosen for the manufacture of the goods supply of the service or execution of the

work exceptionally favourable conditions for the execution of the contract the originality of

the proposed solution employment protection at the place where the contract is executed and

compliance with the provisions relating to working conditions or the possibility of the tenderer

receiving state aid The contracting authorityentity shall verify the constituent elements of the tender taking into account the evidence supplied

The contracting authorityentity may reject a tender which is abnormally low in price because

the tenderer has obtained state aid illegally The tender can be rejected only after a sufficient

time limit has been fixed for the tenderer to prove that the state aid in question was granted

legally If the contracting authorityentity rejects the tender because of illegal state aid it shall report the matter to the European Commission

Section 59

Taking account of a subsidy awarded by the contracting authorityentity in the com-parison of tenders

If the tenderer is an entity belonging to the contracting authorityentitys organisation or if the

contracting authorityentity has granted or will grant the tenderer a financial subsidy which will

affect the price of the tender in the comparison of the tenders the contracting authorityentity

27

shall take into account the factors which will genuinely affect the price of the tender paid by

the contracting authorityentity such as the financial subsidy in question

Chapter 9 Subcontract agreements

Section 60

Subcontracts with related companies

The contracting authorityentity may request the tenderer to state in its tender which part of

the contract it plans to award as a subcontract to related companies and to list these compa-

nies The contracting authorityentity may also request tenderers submitting tenders as a

group as defined in Section 56 to indicate in their tender which part of the contract they plan

to award as a subcontract to their related companies and to list these companies If the rela-

tionships between the companies change during the procurement procedure the tenderer shall update the information included in its tender

A related company means a company which is under the direct or indirect control of the ten-

derer or which has direct or indirect control of the tenderer or which jointly with the tenderer

is under the control of another company on the basis of ownership financial contribution or the

regulations under which the company operates A company is considered to have control of

another company when it owns the majority of that companys unrestricted shareholder equity

controls the majority of the companys shareholders voting rights or may appoint half of the

members of the companys administrative managerial or supervisory body

The provisions of Sections 62-66 of this Act concerning subcontracting agreements are not

applicable to subcontracting agreements which the tenderer has entered into with a related

company or when the tender has been submitted by a group as defined in Section 56 to a

company belonging to the same group or a company which is a related company of a company

belonging to the group

Section 61

Selecting a subcontractor

The tenderer may select its subcontractors in all subcontracting agreements unless otherwise prescribed in Sections 62ndash66 of this Act

Section 62

Requirements concerning subcontracting agreements

The contracting authorityentity shall define the requirements for a subcontracting agreement

in the contract notice and further specify them in the invitation to tender In defining the re-

quirements for subcontracting agreements the principles of proportionality and non-discrimination must be complied with

The contracting authorityentity may require that the tenderer state in the tender which part

or parts of the contract it plans to subcontract to third parties the content of the subcontract-ing agreement and the chosen subcontractors shall also be stated

In addition to the provisions of subsection 2 the contracting authorityentity may require that

the tenderer selected as a contracting party shall

1) in accordance with the procedures laid down in Sections 64ndash66 of this Act invite bids on

part or all of the subcontracts included in the tender and stated in the notice in accordance with subsection 2 or

2) award the minimum amount of the contract value as defined by the contracting authori-

tyentity to third parties as subcontracts and invite bids on these subcontracts in accordance

with the procedures laid down in Sections 64ndash66 of this Act The contracting authorityentity

shall in that case define as percentages the minimum and maximum amount the tenderer shall

award to third parties as subcontracts and require that the tenderer state in its tender which

28

part or parts of the contract it plans to award to third parties as subcontracts in order to fulfil

the requirement of the contracting authorityentity The maximum amount defined by the con-tracting authorityentity shall not exceed 30 percent of the value of the contract or

3) invite bids on a part or parts of the subcontracts which it plans to award to third parties in

addition to the subcontracts mentioned in point 2 above In that case the contracting authori-

tyentity shall require that the tenderer specify in its tender those parts of the contract which it

plans to award as subcontracts to third parties in addition to the subcontracts mentioned in point 2 above

In addition to the provisions of subsections 2 and 3 the contracting authorityentity may re-

quire that the tenderer report any changes occurring at the subcontractor level during the im-

plementation of the contract

The contracting authorityentity shall set the maximum and minimum amount as defined in

subsection 3 point 2 having regard to the object and value of the contract and the character of the industry sector in question the competitive situation and technical capacity

The tenderer has the right to award more subcontracts to third parties than required by the contracting authorityentity in accordance with this Section

Section 63

Rejecting a subcontractor

The contracting authorityentity may specify requirements concerning the subcontractors fi-

nancial and economic situation technical capacity and professional competence information

security security of supply or quality These as well as other requirements concerning the

suitability of the subcontractor shall be stated in the contract notice These requirements shall

be equitable and non-discriminatory and conform to the requirements set in the invitation to tender concerning the suitability of the candidate or tenderer

The contracting authorityentity may decide to reject a subcontractor selected by the tenderer

during the contract procedure or the implementation of the contract if the subcontractor does

not meet the requirements set in the contract notice concerning the suitability of the subcon-

tractor or the exclusion criterion laid down in Section 47 or Section 48 applies to the subcon-

tractor The contracting authorityentity shall justify the rejection in writing to the tenderer

Section 64

Implementation of subcontracts

A tenderer selected as a contracting party shall act openly and treat any and all subcontractors

equally and in a non-discriminatory manner

A tenderer selected as a contracting party shall provide for the publication a subcontract notice

concerning those subcontracts to which the bidding obligation laid down in Section 62(3) ap-

plies and whose estimated value without value added tax exceeds the EU thresholds men-

tioned in Section 12 The notice obligation shall not apply to a subcontract which fulfills the

requirement set for a direct contract award mentioned in Sections 22ndash23 The provisions of

Sections 14ndash16 shall apply to the calculation of the estimated value of subcontracts

The tenderer selected as the contracting party shall specify in the subcontract notice the crite-

ria which the tenderer will apply in assessing the suitability of the subcontractors and in select-

ing them These criteria shall be equitable and non-discriminatory and conform to the criteria

that the contracting authorityentity applies in assessing the suitability of the tenderers The

requirements shall be related to the object of the subcontract and be proportional to the scope

of the subcontract

A tenderer selected as a contracting party may publish a subcontract notice also concerning

those subcontracts which meet the criteria for the subcontracts referred to in Sections 22ndash23

29

Section 65

Exemption from an obligation related to subcontracting

A tenderer selected as a contracting party may not be required to enter into a subcontract if it

indicates in a manner satisfactory to the contracting authorityentity that none of the subcon-

tractors that participated in the competition or none of their tenders fulfil the requirements

set in the subcontract notice and therefore the tenderer selected as a contracting party could

not fulfil the contract requirements

Section 66

Framework agreements

The provisions of Section 62 shall not apply to subcontracts awarded by the tenderer selected

as a contracting party if the framework agreement was put out to tender in accordance with

the provisions of Section 64

Subcontracts based on a framework agreement shall be awarded in accordance with the condi-

tions confirmed in the framework agreement and concluded between the original participants

to the framework agreement Conditions analogous to those of the framework agreement shall be complied with in subcontracting agreements

The framework agreement may not be used in such a way as to distort restrict or prevent

competition

The term of the framework agreement may not exceed seven years In exceptional cases the

framework agreement may be longer in duration when duly justified by the expected life cycle

of the supplies equipment and systems delivered and the technical problems that might re-

sult from the change of supplier

Section 67

The responsibility of the tenderer for carrying out the contract

The requirements set by the contracting authorityentity on the basis of this Chapter and the

notices issued by the tenderers based on them do not limit the responsibility of the tenderer

selected as a contracting party to carry out the contract PART III

National procedures

Chapter 10 Tendering procedures for contracts below the EU threshold for second-

ary service contracts referred to in Annex B and for certain other contracts

Section 68

Contract award procedures

The contract award procedures specified in this Chapter may be used for service contracts

public works contracts and the service contracts referred to in Annex A which are below the EU

threshold referred to in Section 12(1) but above the national threshold referred to in Section

13(1) and for secondary service contracts referred to in Annex B which are above the national

threshold referred to in Section 13(1)

The procedures laid down in this Chapter may also be used for defence contracts referred to in

Section 5 when the value of the defence contracts exceed the national threshold as referred to

in Section 13 provided that the criteria set in Article 346(1)(b) of TFEU are fulfilled

30

Section 69

General rules of procedure

The contracting authorityentity shall aim to take advantage of the prevailing competitive con-

ditions and award the contract primarily through competitive bidding A sufficient number of

tenders shall be requested in terms of the scope and subject matter of the contract to ensure

competition

A public notice shall be issued however the publication obligation does not apply in the case

of contracts that fulfil the criteria set in Article 346(1)(b) of TFEU

The contracting authorityentity may request a tender directly from one supplier if competitive

bidding cannot be carried out for reasons justified on the basis of national defence state secu-rity or security of supply

The contracting authorityentity may also request a tender directly from one supplier if

1) no tenders or no suitable tenders were received in the competitive bidding carried out

previously a further requirement is that the conditions of the original invitation to ten-

der are not fundamentally changed

2) for technical reasons or for reasons connected with the protection of exclusive rights the contract may be awarded only to a particular supplier

3) for reasons of urgency brought about by a crisis it is not possible to carry out competi-tive bidding

4) execution of the contract is absolutely necessary and competitive bidding cannot be

carried out for reasons of extreme urgency brought about by events unforeseeable by

and independent of the contracting authorityentity

5) the product to be acquired are manufactured purely for scientific or research purposes

and it is not a matter of establishing commercial viability of the products or to recover research and development costs

6) the object of the contract is a research and development service that has not been ex-cluded from the scope of this Act on the basis of Section 8

7) the contract is necessary in order to determine whether the final result of the research

and development service is suitable to be used as intended by the contracting authori-tyentity

8) the object of the contract consists of supplies quoted and purchased on a commodity market

9) the supplies are purchased on particularly advantageous terms from either a supplier

winding up its business activities or from the receivers of a bankruptcy or liquidators in

insolvency proceedings an arrangement with creditors or a similar procedure

10) the object of the contract is a second-hand product

11) the object of the contract is based on a supplementary contract right incorporated into

the contract

12) the object of the contract is additional deliveries by the original supplier which are in-

tended either as a partial replacement of existing supplies or installations or as the ex-

tension of existing supplies or installations and a change of supplier would result in in-

compatibility or disproportionate technical difficulties in operation and maintenance

13) the object of the contract is additional works or services not included in the project ini-

tially but which have through unforeseen circumstances become necessary for the per-

formance of the works or services as originally described

31

Section 70

Negotiations with tenderers and specifying the tender and the invitation to tender

The contracting authorityentity may discuss all aspects of the contract with the tenderers dur-

ing the negotiation provided that the negotiations do not result in changing constituent ele-

ments in the invitation to tender in a discriminating manner or in a manner which distorts

competition

The purpose of the negotiations shall be to select the best tender in accordance with Section

73(2) or to determine one or more alternative solutions for contract implementation before

sending the final invitation to tender The dialogue may take place in successive stages in or-

der to reduce the number of tenders or solutions to be discussed during the dialogue by apply-

ing the comparison criteria indicated in the invitation to tender or project description

In competitive bidding the requirement for negotiations shall be that the negotiations and the

criteria to be complied with during the negotiations have been stated in the invitation to tender

or the project description

The contracting authorityentity shall ensure equal treatment of all candidates and tenderers

during the negotiations and shall not provide information in a manner that may compromise

the equal treatment of the participants in competitive bidding

Section 71

Invitation to tender

The invitation to tender shall be submitted in writing and drawn up to be sufficiently clear in

order to enable submission of commensurate and mutually comparable tenders The invitation

to tender shall contain all information that is particularly important in terms of the contracting

procedure and submitting the tender

The invitation to tender shall include the award criterion and where the criterion for the award is that of the economically most advantageous tender the comparison criteria and the ranking thereof The invitation to tender shall indicate a reasonable time allotted for the tenderers to submit a tender taking into consideration the scope and subject matter of the contract

The contracting authorityentity may charge a reasonable fee for the invitation-to-tender doc-

uments to recover the costs arising from the exceptionally extensive scope of the documenta-

tion the materials related thereto or other similar factors

Section 72

Drawing up the invitation to tender and submitting the tender

The invitation to tender and the tenders based thereon shall be drawn up in writing They may be executed orally only in exceptional circumstances if the written procedure is justifiably not appropriate If the invitation to tender or the tenders are not drawn up in writing a record shall be kept of the negotiations held with the tenderers the record shall indicate the infor-mation impacting the course of the procedure and the position of the tenderers

Section 73

Selection of a tender and a tenderer rejecting a tender

The contracting authorityentity may exclude from the competitive bidding any supplier which

taking into consideration the scope and object of the contract and other criteria does not pos-

sess the qualifications to carry out the contract The contracting authorityentity may exclude

32

from the competitive bidding any tender submitted by a tenderer who does not possess the

qualifications to carry out the contract when taking into consideration the scope and object of

the contract and other criteria

The contracting authorityentity shall award the contract to the tenderer whose tender has the

lowest price or complies with the comparison criteria set in the invitation to tender and is eco-

nomically the most advantageous

The contracting authorityentity may reject a tender which does not fulfil the essential condi-

tions set in the invitation to tender or has an abnormally low price in terms of the subject mat-

ter and scope of the contract Before it may reject a tender the contracting authorityentity

shall request in writing details of the constituent elements of a tender that is abnormally low in

price

PART IV

General provisions on decisions concerning contract awards conclusion of contracts

procurement rectification public access to the contract documents and further provi-sions

Chapter 11

Decisions concerning the award of contracts and notification thereof

Section 74

Decision concerning the award

The contracting authorityentity shall provide in writing the decisions affecting the position of

the candidates and tenderers and the results of the tendering procedure including the grounds for the outcome of the procedure

The decision or the related documentation shall state the factors that fundamentally affected

the outcome including the grounds for rejecting the candidate tenderer or tender and the

grounds on which the accepted contracts were compared As regards a decision concerning

asking for bids for a contract based on a framework arrangement stating the facts showing

that the selection and award criteria have been applied as required under Section 27 shall

suffice If the standstill period referred to in Section 79 applies to the contract the decision or

the related documents shall also state the period of time after which the contract may be awarded

The contracting authorityentity is not required to make a decision referred to in this Section

concerning a contract for the additional supplies referred to in Section 23 or Section 69(4)(12)

and additional service or contract referred to in (13) or the temporary arrangements for a con-tract referred to in Section 95

In contracts based on framework agreements the contracting authorityentity is not required to make the decision referred to in this Section if

1) the contract is awarded in accordance with the conditions laid down in the framework

agreement without asking for bids or

2) the competitive bidding is based on a framework agreement when the value of the contract

does not exceed the EU threshold

33

Section 75

Suspending the contract award procedure

The contract award procedure can be suspended only for verifiable and justifiable reason

The provisions of Section 74 concerning contract ruling shall apply to the suspension of the

contract award procedure

Section 76

Appeal instructions and instructions for request for rectification

Instructions for appeal shall accompany the decisions made by the contracting authori-

tyentity explaining how to refer a case to the Market Court for consideration contact infor-

mation of the contracting authorityentity for the notice referred to in Section 90 and instruc-

tions for seeking rectification (petition instructions) explaining how the candidate or tenderer can have the case submitted for reconsideration through procurement rectification

With regard to the issuing and amending appeal and petition instructions the provisions of

Chapter 3 of the Administrative Judicial Procedure Act (5861996) shall apply in terms of ap-

peals and the provisions of Chapter 7 of the Administrative Procedure Act (4342003) shall

apply in terms of petition instructions

Section 77

Notification of the decision concerning the contract award

The decision of the contracting authorityentity including the grounds for the decision and the

appeal and petition instructions shall be submitted in writing to the parties concerned The de-

cision including the aforementioned documents shall be submitted using the electronic con-

tact information which the candidate or tenderer has given to the contracting authorityentity

When using the electronic contact information the candidate and tenderer shall be considered

to have received notice of the decision and the accompanying documents on the date on

which the electronic message containing the aforementioned documents is available in the re-

cipients reception equipment such that the message can be handled Such a point in time shall

mean the date on which the message was sent unless a reliable explanation concerning the

malfunction of telecommunications links or another analogous reason because of which the

electronic message reached the recipient later When electronic notification is used the con-

tracting authorityentity shall include in the message a separate note concerning the date

when the message was sent

The decision including the grounds for it and the appeal and petition instructions may also be

sent via regular mail under the Administrative Procedure Act Candidates and tenderers shall

be considered to have received notification of the decision and the accompanying documents

on the seventh day from the date on which they were sent unless the candidate or tenderer

proves that the notification occurred at a later date

Notification on the decision of the contracting authorityentity shall be issued without undue

delay at the latest 15 days from the date on which the contracting authorityentity receives a written request concerning notification on the decision that was made

34

Chapter 12

Public contract

Section 78

Concluding a public contract

Having made the decision to award a public contract the contracting authorityentity shall

conclude the contract The contract is concluded upon signing a written agreement

Section 79

Standstill period

In the case of a contract above the EU threshold referred to Section 12 above the contract can

be concluded at the earliest 21 days from the date when the candidate or tenderer received or is considered to have received the decision and instructions for appeal (standstill period)

A standstill period shall not be applied in direct contract awards

The provisions of Section 92 shall apply to the effect of an appeal on concluding a contract

Section 80

Exceptions to the compliance with the standstill period

The standstill period need not be upheld if

1) the contract concerns a procurement carried out on the basis of the framework agreement in accordance with Section 27

2) the contract is awarded to the tenderer who submitted the only acceptable tender and no

other tenderers or candidates remain in the competitive bidding whose position would be af-

fected by the selection of a co-contractor

3) the contract concerns a procurement referred to in Section 68(2)

Section 81

Notification of direct awards and conclusion of public contracts

In direct awards exceeding the EU threshold the contracting authorityentity may after hav-

ing made the award decision send a notice for publication concerning the direct award of con-

tract before concluding the contract In that case the contract can be concluded at the earli-est 14 days after the publication of the notice in the Official Journal of the European Union

Chapter 13

Procurement rectification

Section 82

Rectification of a procurement

The contracting authorityentity may remove an incorrect decision or annul an award decision

made during the contracting procedure concerning the legal status of the candidates or ten-

35

derers and make a new decision (procurement rectification) if the award decision or other deci-

sion reached during the contracting procedure is based on an error that occurred in the appli-cation of the law

Amending an award decision or other decision does not require the consent of the party con-

cerned However an award decision or other decision cannot be amended through procure-

ment rectification if the contract has been concluded

Section 83

Initiation of procurement rectification

The contracting authorityentity may take up a procurement rectification on its own initiative

or in response to a demand of the party in question The contracting authorityentity shall noti-fy the concerned parties immediately of the initiation of a procurement rectification

A subcontractor does not have the status of a concerned party referred to in subsection 1 of this section in terms of the matter concerning the contract

The concerned party shall present the demand within 14 days after receipt of the notification

of the award decision or other decision made by the contracting authorityentity during the

contracting procedure The contracting authorityentity itself may amend the award decision or

other decision no later than 60 days after the date the decision concerning the procurement rectification is made

Appealing the case to the Market Court does not prevent a procurement rectification or its pro-

cessing A procurement rectification may also apply to a decision of the contracting authori-

tyentity that has become legally binding if the case has not been submitted to the Market

Court for ruling

Section 84

Effect of the processing of procurement rectification on the proceedings in the Mar-ket Court

The initiation and processing of a procurement rectification do not affect the time limit within

which the concerned party has the right pursuant to this Act to submit an appeal against the

decision to the Market Court

If the award decision or other decision that was reached during the contract award procedure

is to be amended and has been appealed against before the Market Court the Market Court

shall be notified of the processing of the case through procurement rectification and informed

of the decision reached In processing a procurement rectification the contracting authori-

tyentity may prohibit the enforcement of the award decision or other decision or order it to be

suspended The Market Court shall be notified of a prohibition or suspension of enforcement if an appeal has been lodged against the decision in the Market Court

If the contracting authorityentity amends its award decision or other decision by means of a

procurement rectification such that as a result the appellant to the Market Court no longer has

the need for judicial relief or the need for a justified decision the Market Court may decline to

process such a case without giving a ruling on the principal claim

Section 85

The application of procurement rectification to other contracts

A procurement rectification can also be applied to amend an award decision or other decision

made by the contracting authorityentity during the contracting procedure to which this Act

36

shall not apply pursuant to Section 6(2) and Sections 7 8 or 13 A decision made on account

of such a contract rectification may not be appealed against in the Market Court or under the Administrative Judicial Procedure Act or Local Government (Act 3651995)

Chapter 14

Public access to the contract documents

Section 86

Application of the provisions concerning public access to the contract documents

The Act on the Openness of Government Activities (6211999) shall apply to public access to

the documents of the contracting authorityentity and the fees charged for the documents if

the contracting authorityentity is the authority referred to in Section 4 of the aforementioned

Act or if it is obliged to comply with that Act on the basis of a provision contained elsewhere in the Act

In terms of the right of parties other than the participants in the competitive bidding conducted

by the contracting authorityentity referred to in subsection 1 to have access to the docu-

ments drawn up and received for processing of the tender and the confidentiality obligation of

those employed by the contracting authorityentity the provisions of the Act on the Openness

of Government Activities shall apply to the right of concerned parties to have access to the

document to how public access to the document is determined and to the processing and resolving of the matter concerning access to information

The decision of the contracting authorityentity which has resolved the matter concerning ac-

cess to information can be appealed in accordance with the provisions of Section 33 of the Act

on the Openness of Government Activities The Supreme Administrative Court in whose judicial

district the contracting authorityentity is located is the competent Supreme Administrative

Court for considering the appeal submitted on the basis of a decision made by a party other

than the contracting authorityentity acting as an authority

Chapter 15

Appealing and the implications thereof

Section 87

Parties entitled to appeal

A concerned party may appeal the matter to the Market Court by issuing a complaint A sub-

contractor does not have the position of an interested party referred to in subsection 1 of this Section in terms of the matter concerning the contract

In matters concerning control procedures of the European Union the Ministry of Economic Af-

fairs and Employment may also refer the matter to the Market Court for consideration

Section 88

Object of the appeal

An appeal may be lodged before the Market Court against an award decision of the contracting

authorityentity referred to in this Act or other decision reached by the contracting authori-

tyentity during the contracting procedure which affects the status of the candidate or the ten-derer

37

An appeal may not be lodged before the Market Court against an award decision or other deci-

sion of the contracting authorityentity which concerns only the preparation of the contracting

procedure An appeal may not be lodged against a decision or other measure taken by the

supplier selected as a contracting party concerning a subcontracting agreement or an award

decision or determination made by the contracting authorityentity during the implementation of the contract

A contract based on a framework agreement referred to in Section 27 above and a contract

referred to in Section 68(2) may not be appealed unless a processing authorisation is issued by the Market Court The authorisation shall be issued if

1) the processing of the case is important in terms of applying the Act in other similar matters

or

2) there is a cogent reason for it related to the procedures of the contracting authorityentity

Section 89

Time period for appeal

Unless otherwise prescribed in this Section an appeal must be lodged in writing within 14 days

from the date when the candidate or tenderer received the notice concerning the contract with the instructions for appeal

If the contracting authorityentity has concluded a public contract after the contract decision

was issued on the basis of Section 80 point 1 without complying with the standstill period

the appeal shall be lodged within 30 days from the date when the tenderer has received notice

of the decision with the instructions for appeal

An appeal before the Market Court shall be lodged within six months of the date of the contract

decision provided that the candidate or tenderer has received notice of the contract decision

and the contract decision or appeal instructions were materially deficient or the appeal instruc-tions have been missing altogether

If the contracting authorityentity has with regard to a contract above the EU threshold re-

ferred to in Section 12 above delivered a notice regarding a direct award of contract for publi-

cation in the Official journal of the European Union the complaint must be lodged within 14 days from the publication of the notice

If the notice referred to in subsection 4 has not been published the appeal concerning a direct award of contract shall be lodged

1) within 30 days of the date of publication of a contract-award notice has been published in

the Official Journal of the European Union or

2) within six months from the conclusion of the contract at the latest

Section 90

Notification of appeal to the contracting authorityentity and the list of procurement

cases

The appellant in a contract-related matter must notify the contracting authorityentity in writ-ing of referring the case to the Market Court for consideration

The notification must be delivered to the contracting authorityentity at the latest when the

complaint concerning the contract is delivered to the Market Court The notification shall be delivered to the address provided by the contracting authorityentity

38

The Market Court shall maintain and publish a list which is as comprehensive and up-to-date

as possible of contract-related matters pending at the Market Court

Section 91

The contracting authorityentity as the opponent and compensation of legal costs

In the proceedings regarding contract-related matters the contracting authorityentity shall be considered the opponent of the party or agency lodging the appeal

The provisions of Section 74 subsections 1 and 2 of the Administrative Judicial Procedure Act shall apply to the compensation of legal costs regarding contract-related matters

The provisions of Section 74 subsections 1 and 2 of the administrative Judicial Procedure Act

concerning public authorities or other public parties shall apply to the decision concerning the

liability to provide compensation for the legal costs of the opponent If one contracting authori-

tyentity has been responsible for the contracting procedure on behalf of the other contracting

authorities the obligation regarding compensation of legal costs may be placed on the con-

tracting authorityentity which acted on behalf of the other contracting authorities

Section 92

The effect of the appeal on concluding the contract

In case of a contract where the standstill period or the time limit referred to in section 81 must

be observed the contracting authorityentity may not conclude the contract if the matter has

been brought up for consideration by the Market Court

If the Market Court decides a case concerning enforcement or decides on the principal claim

before the standstill period or the time limit referred to in Section 81 has expired the contract-

ing authorityentity shall observe the standstill period or the time limit referred to in Section

81 until the end of the period notwithstanding the ruling of the Market Court

Section 93

Interim decisions of the Market Court

While the appeal is under consideration the Market Court may prohibit suspend or allow the

implementation of the decision concerning the contract award or order the contracting proce-

dure to be suspended otherwise as an interim measure for the duration of the proceedings in the Market Court

When deciding on the measure referred to in subsection 1 the Market Court shall take into

consideration that the harm caused by the measure to the opponent the rights of third par-

ties the security of the state or the public interest may not outweigh its benefits

However the decision prescribed in subsection 1 of this Section cannot be carried out in the case of a contract referred to in Section 68(2) of this Act

A legally trained member of the Market Court may alone issue a ruling as an interim measure

Section 94

Interim commitment of the contracting authorityentity

While the appeal is under consideration the contracting authorityentity may provide a written

undertaking to the Market Court stating that it will not enforce the decision concerning the contract for as long as the matter is pending in the Market Court

39

If the contracting authorityentity provides the Market Court with the undertaking referred to

in subsection 1 the Market Court will not issue without a specific reason a decision on the

obligation to interim prohibition on implementing the decision to award the contract

Section 95

Temporary organisation of a contract

If an appeal has been lodged against a contract before the Market Court the contracting au-

thorityentity may temporarily organise the contract by ordering it from a supplier who partici-

pated in the contracting procedure or from a previous supplier if the nature of the contract is

such that executing the contract cannot be postponed for the duration of the Market Court pro-ceedings

Temporary contract arrangements must not hinder the execution of the following items by means of a decision of the Market Court

1) the decision of the contracting authorityentity to cancel the contract in full or in part

2) prohibit the contracting authorityentity from applying any erroneous item included in the contract document or otherwise complying with an incorrect procedure or

3) require the contracting authorityentity to rectify its incorrect procedure

Section 96

Sanctions imposed by the Market Court

If during the contract procedure actions have been taken which are against this Act or the provisions based thereon or against European Union legislation the Market Court may

1) cancel the decision of the contracting authorityentity in full or in part

2) prohibit the contracting authorityentity from applying any erroneous item included in the contract document or otherwise complying with an incorrect procedure

3) require the contracting authorityentity to correct its erroneous procedure

4) order the contracting authorityentity to pay a compensatory fee to the party which would

have had a genuine chance to win the bidding competition had the procedure been correct

5) impose an ineffectiveness sanction on the contracting authorityentity

6) order the contracting authorityentity to pay an infringement fine to the state

7) reduce the contract term to end after a period of time specified by the Market Court has

passed

The provisions of Sections 97ndash100 shall apply to determining the sanctions mentioned in sub-

section 1 points 4ndash7 above When determining these sanctions the Market Court may consid-

er the contract to have been concluded on the basis of specific circumstances provided that

the contracting authorityentity has especially commenced the implementation of the contract

The ineffectiveness sanctions infringement fine and reduction of contract terms may only be

issued in contracts exceeding the EU thresholds referred to in Section 12 However an ineffec-tiveness sanction cannot be imposed in a service contract in accordance with Annex B

Only a compensatory fee can be imposed in a contract referred to in Section 68(2) of this Act

40

Section 97

Compensation

Provision for compensation may be made if the harm caused to the contracting authori-

tyentity rights of third parties state security and the public interest by the measure defined

in Section 96(1)(1ndash3) is considered to outweigh the benefits or if the petition has been initiat-

ed following the conclusion of the contract With respect to setting the amount of the compen-

satory fee account shall be taken of the nature of the infringement or omission by the con-

tracting authorityentity the value of the contract in question and the costs and damages in-

curred by the petitioner The Market Court may however decide not to prove for compensa-

tion if the contracting authorityentity has refrained from implementing the contract during the proceedings in the Market Court

Without a specific reason the amount of compensation shall not exceed 10 percent of the val-

ue of the contract

Section 98

Ineffectiveness

The Market Court may declare a contract ineffective if

1) the contracting authorityentity has made a direct award of contract without the basis re-ferred to in this Act and the procedures referred to in Section 81

2) the contracting authorityentity has concluded the contract although there is an obligation in the contract to observe a standstill period

3) the contracting authorityentity has concluded the contract contrary to Section 92 although

the procurement case has been submitted to the Market Court for a decision

In addition a requirement in the situation referred to in subsection 1 points 2 and 3 above is

that the contracting authorityentity has made another infringement contrary to this Act which has affected the chances of the appellant to win the contract

If the contracting authorityentity has concluded the contract in a competition based on the

framework agreement on the basis of Section 80 without observing the standstill period and if

a breach has been committed in the competition in respect of Section 27(2 or 3) such that this

has affected the chances of the appellant to win the contract the Market Court may declare the contract ineffective

The Market Court shall decide to which contractual obligations ineffectiveness shall apply Inef-

fectiveness shall apply only to unfulfilled contractual obligations

Section 99

Non-imposition of ineffectiveness

In the situations referred to in Section 98 above the Market Court may decide not to impose

ineffectiveness for compelling reasons related to the public interest or state security Economic

interests which are directly related to the contract may be deemed compelling only if ineffec-tiveness of the contract would exceptionally have inequitable consequences

The Market Court may not impose ineffectiveness if it would result in serious endangerment of

the implementation of a defence and security project essentially important with respect to

state security

Section 100

41

Infringement fines and reduction of the contract term

The Market Court may order a contracting authorityentity to pay the state an infringement

fine if

1) the Market Court has declared the contract ineffective

2) the contracting authorityentity has concluded the contract although there is an obligation in the contract to observe a standstill period

3) the contracting authorityentity has concluded the contract contrary to Section 92 although the procurement case has been submitted to the Market Court for a decision or

4) the Market Court has decided not to declare the contract ineffective for compelling reasons related to the public interest or state security in accordance with Section 99

In the situation referred to in subsection 1 point 4 above the Market Court may in addition to

or instead of imposing a sanction reduce the contract term so that it ends after a period of time specified by the Court

The Market Court may order a contracting authorityentity to pay the state an infringement

fine or reduce the contract term so that it ends after a period of time specified by the Court

this applies to service contracts referred to in Annex B of this Act the value of which exceeds

the EU threshold as defined in Section 12 if the contracting authorityentity

1) has made a direct award of contract without the basis referred to in this Act and the proce-dures referred to in Section 81 not having been complied with in the direct award

2) has concluded the contract although there is an obligation in the contract to observe the standstill period

3) has concluded the contract contrary to Section 92 although the procurement case has been submitted to the Market Court for a decision or

4) has concluded the contract in a competition based on a framework agreement on the basis

of Section 80 without observing the standstill period and if a breach has been committed in the

competition in respect of Section 27(2 or 3) such that this has affected the chances of the ap-pellant to win the contract

In addition a requirement in the situation referred to in subsection 3 points 2 and 3 above is

that the contracting authorityentity has made another infringement contrary to this Act which

has affected the chances of the appellant to win the contract

With respect to issuing a sanction the Market Court shall take into account the nature of the

mistake or omission by the contracting authorityentity and the value of the contract in ques-

tion The sanction shall not exceed 10 percent of the value of the contract

Section 101

Allocation of sanctions and cumulative effect

If one contracting authorityentity has been responsible for the contracting procedure on be-

half of the other contracting authorities the obligation to compensate for legal costs can be

placed on the contracting authorityentity that acted on behalf of the other contracting authori-

ties

With respect to the sanctions referred to in this Act the Market Court shall take into considera-

tion that the cumulative effect may not become unreasonable for the contracting authori-

tyentity or its contracting party

42

Section 102

Conditional fine

The Market Court may impose a conditional fine in order to underline the importance of com-

plying with the prohibitions or obligations referred to in this Act The provisions of the Act on

Conditional Fines (11131990) shall apply to the imposing of and sentencing to the payment of

conditional fines

If one contracting authorityentity has been responsible for the contracting procedure on be-

half of the other contracting authorities the obligation to compensate for costs can be placed

on the contracting authorityentity that acted on behalf of the other contracting authorities

Section 103

Notification of the Market Courts ruling

The ruling of the Market Court along with the instructions for appeal shall be verifiably notified under the provisions of the Administrative Judicial Procedure Act

With the consent of the appellant and the contracting authorityentity the Market Courts deci-

sion together with the instructions for appeal may be publicised using the electronic contact

information the aforementioned parties have provided to the Market Court

When electronic contact information is used the appellant and the contracting authorityentity

shall be deemed to have been notified of the decision and instructions for appeal on the date

on which the message concerning the matter is available in the recipientsrsquo reception equipment

so that the message can be handled The provisions of Section 77(1) shall apply to electronic

notification

Section 104

Prohibition to appeal

A case that is within the jurisdiction of the Market Court cannot be appealed against under the

provisions of the Local Government Act or the Administrative Judicial Procedure Act

A decision or ruling concerning a contract which has been excluded from the scope of applica-

tion of this Act on the basis of Section 6(2) and Sections 78 or 13 may not be appealed under

the Administrative Judicial Procedure Act or the Local Government Act The subcontractor may

not under the Administrative Judicial Procedure Act or the Local Government Act appeal the

decision or action taken by the contracting authorityentity concerning the subcontract

Section 105

Appeals against the decisions of the Market Court

Appeals against a ruling of the Market Court can be lodged in the Supreme Administrative Court in accordance with the Administrative Judicial Procedure Act

As referred to in Section 93(1) an appeal cannot be lodged against the ruling by the Market

Court in the Supreme Administrative Court A ruling by the Market Court does not prevent the

case from being reconsidered by the Market Court if the grounds for the previous ruling have

changed

If the Market Court has ruled that it will not grant the processing authorisation referred to in

Section 88(3) then an appeal against this ruling can only be lodged if the Supreme Adminis-

trative Court grants a leave to appeal

43

Section 106

Application of the Administrative Judicial Procedure Act

The Administrative Judicial Procedure Act shall apply to appeals unless otherwise provided by this Act

Section 107

Implementation of rulings

A ruling of the Market Court has to be observed notwithstanding any appeal unless the Su-

preme Administrative Court orders otherwise The ruling of the Market Court issuing the sanc-

tion referred to in Section 96(1)(4ndash7) may only be implemented on the basis of a final ruling

The implementation of a ruling concerning a sanction shall be supervised by the Legal Register

Centre The Legal Register Centre must be informed of any ruling by the Market Court and

Supreme Administrative Court to issue a sanction

Section 108

Compensation for damages

Those who cause damage to a candidate tenderer or supplier shall be liable to pay compensa-

tion for the damage they have caused while acting in breach of this Act or any regulations based thereon or the European Union law

However when the claim for damages refers to costs incurred as a result of the tendering pro-

cedure the candidate or tenderer is entitled to compensation if it can provide proof of the in-

correct procedure as defined in subsection 1 and that had the procedure been correct it would have had a genuine chance to win the contract

In respect of the cases defined in subsection 1 and 2 a Court of first instance shall be the

competent court in accordance with Chapter 10 of the Code of Judicial Procedure

Chapter 16

Further provisions

Section 109

Disclosure of information

Notwithstanding the provisions concerning confidentiality provided for in the Act on the Open-

ness of Government Activities or in any other act the contracting authorityentity shall supply

statistics and other information concerning the different stages of the contract and performed

contracts to the Finnish authorities and European Union bodies to monitor contracts and ex-

change information on the scale and to the time limit required by European Union law Pursu-

ant to this Act the Ministry of Economic Affairs and Employment has the right to forward in-

formation it has received to the European Union authorities notwithstanding the regulations on confidentiality

The contracting authorityentity shall draw up a written report on each contract and framework

agreement which includes essential information on the contract contract procedure and the

candidates and tenderers who participated as well as on the decisions made in connection with

44

the contract The report and its main content shall be forwarded on request to the European

Commission A separate report is not required if corresponding information can be found in the

contract decision or other documents

To document the course of the realised contract procedure the contracting authorityentity

shall implement necessary measures in an electronic format

More specific rules are laid down in a Government decree on the obligation to provide statistics

and the responsibility of the contracting authorityentity to draw up reports on contract proce-

dures and contract decisions as referred to in subsection 1 which are to be forwarded to the

European Union bodies

Section 110

Entry into force and transitional provisions

This Act enters into force on 1 January 2012

If a contract procedure is started before the entry into force of this Act the provisions that

were in force at the time when this Act entered into force shall be applied The contract proce-

dure shall be deemed to have commenced when the contract notice was published A contract

which does not require the publication of the contract notice shall be deemed to have com-

menced when the invitation to tender or a meeting is sent or negotiations with suppliers begin

Measures necessary for the implementation of this Act may be undertaken before the Actrsquos

entry into force

45

ANNEX A

Primary services

Group No

Matter CPV Reference No

1 Maintenance and repair services 50000000-5 50100000-6-50884000-4 (except 50310000-1-50324200-4 and 50116510-9 50190000-3 50229000-6 50243000-0) and 51000000-9-51900000-1

2 Services related to international military assistance

75211300-1

3 Defence services military defence services and civil defence services

75220000-4 75221000-1 75222000-8

4 Investigation and security services 79700000-1-79720000-7

5 Land transport services 60000000-8 60100000-9-60183000-4 (except 60160000-7 60161000-4) and 64120000-3-64121200-2

6 Air transport services for passengers and freight except transport of mail

60400000-2 60410000-5-60424120-3 (except 60411000-2 60421000-5) 60440000-4-60445000-9 and 60500000-3

7 Transport of mail by land and by air 60160000-7 60161000-4 60411000-2 60421000-5

8 Railway transport services 60200000-0-60220000-6

9 Sea transport services 60600000-4-60653000-0 and 63727000-1-63727200-3

10 Support and auxiliary transport services 63100000-0-63111000-0 63120000-6-63121100-4 63122000-0 63512000-1 and 63520000-0-6370000-6

11 Telecommunications services 64200000-8-64228200-2 72318000-7 and 72700000-7-72720000-3

12 Financial services insurance services 66500000-5-66720000-3

13 Data-processing and related services 50310000-1-50324200-4 72000000-5-72920000-5 (except 72318000-7 and 72700000-7-72720000-3) 79342410-4 9342410-4

14 Research and development services(sup1) and evaluation tests

73000000-2-73436000-7

15 Accounting auditing and bookkeeping services

79210000-9-79212500-8

16 Management consulting(sup2) and related services

73200000-4-73220000-0 79400000-8-79421200-3 and 79342000-3 79342100-4 79342300-6 79342320-2 79342321-9 79910000-6 79991000-7 98362000-8

17 Architectural services engineering services and integrated engineering services urban planning and landscape architectural services related scientific and technical consulting services technical testing and analysis services

71000000-8-71900000-7(except 71550000-8) and 79994000-8

18 Building cleaning services and building and property management services

70300000-4-70340000-0 and 90900000-6-90924000-3

19 Sewage and refuse disposal services 90400000-1 to 90743200-9 (except 90712200-3)

46

sanitation and similar services 90910000-9-90920000-2 and 50190000-3 50229000-6 50243000-0

20 Training and simulation services in the fields of defence and security

80330000-6 80600000-0 80610000-3 80620000-6 80630000-9 80640000-2 80650000-5 80660000-8

(sup1) Except the research and development services referred to in Section 13(2)(5) (sup2) Except arbitration and conciliation services ANNEX B Secondary services

Group No

Matter CPV Reference No

21 Hotel and restaurant services 55100000-1-55524000-9 and 98340000-8-98341100-6

22 Support and auxiliary transport services 63000000-9-63734000-3 (except 63711200-8 63712700-0 63712710-3) 6372700-1-63727200-3 and 98361000-1

23 Legal services 79100000-5-79140000-7

24 Employment and personnel recruitment services(sup1)

79600000-0-79635000-4 (except 79611000-0 79632000-3 79633000-0) and 98500000-8-98514000-9

25 Health and social services 79611000-085000000-9 and -85323000-9 (except 85321000-5 and 85322000-2)

26 Other services

(sup1) Except employment contracts

47

ANNEX C NACEsup1ordm

Main category F CONSTRUCTION CPV code

2-digit level

3-digit level

4-digit level

Description Comments

45 Construction This two-digit level includes the following construction of new buildings and works reconstruction and common repairs

45000000

451 Site preparation

45100000

4511 Demolition and wreck-ing of buildings earth moving

This four-digit level includes the following - demolition of buildings and other structures - clearing of building sites and earth moving site excavation landfill and levelling trench dig-ging quarrying blasting etc - site preparation for mining

- overburden removal and other development and prepa-ration of mines and mining sites

This four-digit level also includes - building site underdrainage - drainage of agricultural or forestry land

45110000

4512 Test drilling This four-digit level includes the following - test drilling test boring and sampling for construction geophysical geological or similar purposes This four-digit level excludes the following - drilling of oil or gas wells comp 1120 - water well drilling 4525

45120000

sup1deg Council regulation (EEC) No 303790 (Official Journal of the European Union 293 24 October 1990 p 1) on the statistical classification of economic activities in the European Community issued on 9 October 1990 regulation as amended by Commission Regulation (EEC) No 76193 (Official Journal of the European Union L 83 3 April 1993 p 1) If there are differences of opinion between CPV and NACE NACE nomenclature shall apply

48

- shaft sinking comp 4525 - oil and gas field exploration geophysical geological and seismic surveying comp 7420

452 Building complete constructions or parts thereof

45200000

4521 Building work This four-digit level includes the following - Construction of all types of buildings - civil engineering and hydraulic engineering works - building of bridges including those for elevated highways metro tunnels - construction of long-distance pipelines communication cables and long-distance networks for power lines - construction of long-distance pipelines telecommunication ca-bles and municipal network power lines related installation work - on-site assembly and erection of pre-fabricated constructions This four-digit level excludes the following - services related to oil and gas extraction comp 1120 - erection of complete prefabricat-ed constructions from self-manufactured parts not of con-crete comp 20 26 28 - construction work other than buildings for stadiums swimming pools gymnasiums tennis courts golf courses and other sports installations comp 4523 building installation comp 453 - building completion comp 454 - architectural and engineering services comp 7420 - project management for construction comp 7420

45210000 Except 45213316 45220000 45231000 45232000

4522 Erection and covering of roofs

This four-digit level includes the following - erection of roofs - roof covering - waterproofing

45261000

49

4523 Construction of highways streets airports and sports equipment

This four-digit level includes the following - construction of highways streets other vehicular and pedestrian ways - construction of railways - construction of airfield runways - construction work other than build-ings for stadiums swimming pools gymnasiums tennis courts golf courses and other sports installations - painting of markings on road surfaces and car parks This four-digit level excludes the following - preliminary earth moving comp 4511

45212212 and DA03 45230000 except 45231000 45232000 45234115

4524 Construction of water projects

This four-digit level includes the following building works - construction of waterways harbour and river works marinas locks etc - construction of dams and breakwaters - dredging - subsurface work

45240000

4525 Other construction work

This four-digit level includes the following - construction activities specialising in one aspect common to different kinds of structures requiring specialised skill or equipment - construction of foundations including pile driving - water well drilling and construction shaft sinking - erection of non-self-manufactured steel frame elements - steel bending - bricklaying and stone setting - erecting and dismantling of scaffolds and work platforms including rental of scaffolds and work platforms - erection of chimneys and industrial ovens This four-digit level excludes the following - rental of scaffolds without erecting and dismantling comp 7132

45250000 45262000

453 Building installation 45300000

4531 Installation of electri-cal wiring and fittings

This four-digit level includes the installation in buildings or other

45213316 45310000

50

construction projects of - electrical wiring and fittings - telecommunications systems - electrical heating systems - residential antennas - fire alarms - burglar alarm systems - lifts and escalators - lightning conductors etc

Except 45316000

4532 Insulation work This four-digit level includes the following - installation in buildings or other construction projects of thermal sound or vibration insulation This four-digit level excludes the following - waterproofing comp 4522

45320000

4533 Plumbing This four-digit level includes the installation in buildings or other construction projects of the following - plumbing and sanitary equipment and fittings - gas fittings - heating ventilation refrigeration or air-conditioning equipment and ducts - sprinkler systems This four-digit level excludes the following - installation of electrical heating systems comp 4531

45330000

4534 Other installation work

This four-digit level includes the fol-lowing - installation or other construction of illumination and signalling systems for roads railways airports and harbours - installation in buildings or other construction projects of fittings and fixtures

45234115 45316000 45340000

454 Building completion 45400000

4541 Plastering This four-digit level includes the following - application in building or other construction projects of interior and exterior plaster or stucco and other similar lathing materials

45410000

4542 Joinery installation This four-digit level includes the following - installation of non-self-manufactured doors windows door

45420000

51

and window frames fitted kitchens staircases and shop fittings made of wood or other materials - completion of interiors such as ceilings wooden wall coverings wall paneling installation of movable partitions etc This four-digit level excludes the following - laying of parquet and other wooden floor coverings comp 4543

52

4543 Floor covering and wall upholstery

This four-digit level includes the following - covering or tiling of buildings or other structures using - ceramic concrete or stone wall or floor tiles or stones - parquet or other wooden floor covering - wall-to-wall carpeting or linoleum also rubber or plastic floor covering - wall or floor covering made of mosaic marble granite or slate - wallpaper

45430000

4544 Painting and glazing This four-digit level includes the following - interior and exterior painting of buildings - exterior painting of other structures - installation of mirrors glass etc This four-digit level excludes the following - installation of windows comp 4542

45440000

4545 Other building completion

This four-digit level includes the following - construction of private swimming pools - cleaning the exterior surfaces of buildings using steam sandblasting or other similar method - other building completion work not classified elsewhere This four-digit level excludes the following - cleaning of buildings and other structures comp 7470

45212212 and DA03 45450000

455 Rental of construction or dismantling equip-ment with operators

45500000

4550 Rental of construction or dismantling equip-ment with operators

This four-digit level excludes the following - rental of construction or dismantling machines and equipment without operators comp 7132

45500000

24

Section 53

Technical capacity and professional ability

The contracting authorityentity may request that the candidate or tenderer furnish proof of its

technical capacity and professional ability by the following documents

1) the educational and professional qualifications of the candidate or tenderer or those of the

management of the undertaking and in particular those of the persons responsible for man-

aging the work or providing services or products that involve siting or installation functions or services

2) a list of the works carried out over a period not exceeding the past five years accompanied

by a certificate of satisfactory execution of the most important works the certificate shall indi-

cate the value date and site of the works and shall specify whether they were carried out ac-

cording to the rules of the trade and properly completed where appropriate a competent au-thority shall submit these certificates to the contracting authorityentity directly

3) a list of the principal deliveries carried out or the main services provided over a period not

exceeding the past five years with the sums dates and recipients involved where the recipi-

ent was a public body the list shall be verified by the competent authority where the recipient

was a private purchaser by the purchasers certification or failing this by a declaration of the

candidate or tenderer

4) an indication of the technical experts or bodies involved whether or not they belong directly

to the candidate or tenderer especially those responsible for quality control and in the case of

public works contracts those experts and bodies upon whom the contractor can call in order to carry out the work

5) the candidates or tenderers description of the tools equipment and actions by which it

ensures quality as well as the research and testing equipment required to implement the con-tract and the internal rules regarding industrial property and copyrights

6) a certificate for the inspection carried out by the candidate or tenderer or on its behalf by a

competent official body of the country in which the candidate or tenderer is established regard-

ing the candidatersquos or tendererrsquos production capacities technical capacity research or trial sys-

tems or quality control measures which it will implement

7) a statement of the average annual manpower of the service provider or contractor and the number of managerial staff for the last three years as a maximum

8) a statement of the tools fixtures technical equipment number of personnel know-how and

sources available to the service provider or tenderer for carrying out the contract for fulfilling

the additional needs that may arise from any crisis that the contracting authorityentity may

undergo or for the maintenance modernisation or adaptation of the products that are the ob-

ject of the contract in addition information on the geographic location of the tools fixtures

technical equipment number of personnel know-how and sources in the event that these are located outside of the European Union

9) with regard to the products to be supplied samples descriptions and photographs the au-

thenticity of which must be certified if the contracting authorityentity so requests and certifi-

cates drawn up by an official quality control institute or agencies of recognised competence

attesting to the conformity of the products to be supplied with technical specifications or standards and

10) with regard to public contracts having as their object supplies requiring a service or siting

or installation work an indication of professional ability efficiency experience and reliability

If appropriate to the object of the contract the contracting authorityentity may request that

the candidate or tenderer provide an indication of the environmental management measures to

be applied when performing a public works or service contract Should the contracting authori-

tyentity require the production of certificates drawn up by independent bodies attesting the

compliance of the tenderer with environmental management standards it shall refer to the

Community eco management and audit scheme (EMAS) or to the environmental management

standards based on relevant European or international standards certified by bodies conform-

25

ing to Community law or relevant European or international standards concerning certification

The contracting authorityentity shall accept equivalent certificates from bodies established in

other European Union member states and other evidence of equivalent environmental man-agement measures from the suppliers

If appropriate to the object of the contract the contracting authorityentity may request that

the candidate or tenderer provide an indication of the quality assurance measures Should the

contracting authorityentity require the production of certificates drawn up by independent

bodies attesting to the compliance of the tenderer with quality assurance standards the con-

tracting authorityentity shall refer to quality assurance systems based on relevant European

standards series certified by bodies conforming to the European standards series concerning

certification The contracting authorityentity shall accept equivalent certificates from bodies

established in other European Union member states and other evidence of equivalent quality assurance measures from the tenderers

If for any valid reason the candidate or tenderer is unable to provide the documents request-

ed by the contracting authorityentity it may demonstrate its economic and financial standing by any other document which the contracting authorityentity considers appropriate

Section 54

Requirements on information security set for candidates and tenderers

If classified documents are submitted drawn up or otherwise dealt with to carry out a call for

tender the contracting authorityentity may set requirements for candidates or tenderers to

meet the information security requirements laid down for authorities The contracting authori-

tyentity may request candidates or tenderers to provide commitments or information which

prove their capacity to meet the information security requirements

For candidates who have not obtained the certificate or commitment referred to in Section 1

the contracting authorityentity may grant additional time to obtain the certificate or commit-

ment In that case a deadline shall be set for the delivery of these In addition to the com-

mitments and information provided by the candidate the contracting authorityentity may render and consider any supplemental investigations it has conducted

Section 55

Legal form of the candidate and the tenderer and indication of the responsible per-sons

A candidate or tenderer which under the legislation of the country in which it is established is

entitled to provide the services that are the object of the contract may not be rejected solely

on the ground that under the legislation of the European Union member state in which the contract is awarded it would be required to be either a natural or legal person

In the case of public service and public works contracts as well as public supply contracts in-

volving siting and installation operations the contracting authorityentity may require candi-

dates and tenderers to indicate in the tender or the request to participate the names and pro-

fessional qualifications of the persons responsible for carrying out the services or the work in question

Section 56

Groups participating in the competitive bidding and reliance on the capacities of oth-er entities

Groups of suppliers may submit tenders or put themselves forward as candidates The con-

tracting authorityentity may not require these groups of candidates or tenderers to assume a

specific legal form in order to submit a tender or a request to participate However the group

may be required to do so during the term of the contract to the extent that this change is necessary for the satisfactory performance of the contract

26

A candidate or tenderer may rely on the capacities of other entities regardless of the legal na-

ture of the links it has with them to carry out the contract A group may rely on the abilities of

participants in the group or in other entities in order to perform the contract The candidate or

tenderer or a group thereof shall furnish the contracting authorityentity with proof that the

requirements relating to economic and financial standing technical capacity and professional

ability and other requirements are satisfied This proof may include contracts between compa-

nies or other binding documents demonstrating that the capacities to satisfy the requirements are accessible by the candidates or tenderers

Section 57

Selecting the tender

The contract awarded shall be either the economically most advantageous tender from the

point of view of the contracting authorityentity in accordance with the comparison criteria

linked to the object of the contract or the lowest in price When the award is made to the eco-

nomically most advantageous tender the criteria may include for example quality price

technical merit aesthetic and functional characteristics environmentally friendly characteris-

tics running costs costs associated with a long life cycle cost effectiveness after-sales ser-

vice and technical assistance delivery date delivery period and period of completion security of supply and interoperability and functional characteristics

The contracting authorityentity shall specify in the contract notice or the invitation to tender

documentation the comparison criteria and the relative weighting which it gives to each of the

criteria chosen to determine the economically most advantageous tender In the competitive

dialogue procedure the equivalent information shall be specified in the contract notice or the

project description The weighting may also be specified by indicating a reasonable range If it

is not reasonably possible to specify the relative weighting of the comparison criteria they

shall be specified in the order of importance

Section 58

Abnormally low tenders

The contracting authorityentity may reject tenders that are abnormally low in relation to the

quality and scope of the contract Before it may reject a tender the contracting authori-

tyentity shall request in writing a written report from the tenderer on the constituent ele-ments of the tender

The request referred to in subsection 1 may relate in particular to the economic and technical

solutions chosen for the manufacture of the goods supply of the service or execution of the

work exceptionally favourable conditions for the execution of the contract the originality of

the proposed solution employment protection at the place where the contract is executed and

compliance with the provisions relating to working conditions or the possibility of the tenderer

receiving state aid The contracting authorityentity shall verify the constituent elements of the tender taking into account the evidence supplied

The contracting authorityentity may reject a tender which is abnormally low in price because

the tenderer has obtained state aid illegally The tender can be rejected only after a sufficient

time limit has been fixed for the tenderer to prove that the state aid in question was granted

legally If the contracting authorityentity rejects the tender because of illegal state aid it shall report the matter to the European Commission

Section 59

Taking account of a subsidy awarded by the contracting authorityentity in the com-parison of tenders

If the tenderer is an entity belonging to the contracting authorityentitys organisation or if the

contracting authorityentity has granted or will grant the tenderer a financial subsidy which will

affect the price of the tender in the comparison of the tenders the contracting authorityentity

27

shall take into account the factors which will genuinely affect the price of the tender paid by

the contracting authorityentity such as the financial subsidy in question

Chapter 9 Subcontract agreements

Section 60

Subcontracts with related companies

The contracting authorityentity may request the tenderer to state in its tender which part of

the contract it plans to award as a subcontract to related companies and to list these compa-

nies The contracting authorityentity may also request tenderers submitting tenders as a

group as defined in Section 56 to indicate in their tender which part of the contract they plan

to award as a subcontract to their related companies and to list these companies If the rela-

tionships between the companies change during the procurement procedure the tenderer shall update the information included in its tender

A related company means a company which is under the direct or indirect control of the ten-

derer or which has direct or indirect control of the tenderer or which jointly with the tenderer

is under the control of another company on the basis of ownership financial contribution or the

regulations under which the company operates A company is considered to have control of

another company when it owns the majority of that companys unrestricted shareholder equity

controls the majority of the companys shareholders voting rights or may appoint half of the

members of the companys administrative managerial or supervisory body

The provisions of Sections 62-66 of this Act concerning subcontracting agreements are not

applicable to subcontracting agreements which the tenderer has entered into with a related

company or when the tender has been submitted by a group as defined in Section 56 to a

company belonging to the same group or a company which is a related company of a company

belonging to the group

Section 61

Selecting a subcontractor

The tenderer may select its subcontractors in all subcontracting agreements unless otherwise prescribed in Sections 62ndash66 of this Act

Section 62

Requirements concerning subcontracting agreements

The contracting authorityentity shall define the requirements for a subcontracting agreement

in the contract notice and further specify them in the invitation to tender In defining the re-

quirements for subcontracting agreements the principles of proportionality and non-discrimination must be complied with

The contracting authorityentity may require that the tenderer state in the tender which part

or parts of the contract it plans to subcontract to third parties the content of the subcontract-ing agreement and the chosen subcontractors shall also be stated

In addition to the provisions of subsection 2 the contracting authorityentity may require that

the tenderer selected as a contracting party shall

1) in accordance with the procedures laid down in Sections 64ndash66 of this Act invite bids on

part or all of the subcontracts included in the tender and stated in the notice in accordance with subsection 2 or

2) award the minimum amount of the contract value as defined by the contracting authori-

tyentity to third parties as subcontracts and invite bids on these subcontracts in accordance

with the procedures laid down in Sections 64ndash66 of this Act The contracting authorityentity

shall in that case define as percentages the minimum and maximum amount the tenderer shall

award to third parties as subcontracts and require that the tenderer state in its tender which

28

part or parts of the contract it plans to award to third parties as subcontracts in order to fulfil

the requirement of the contracting authorityentity The maximum amount defined by the con-tracting authorityentity shall not exceed 30 percent of the value of the contract or

3) invite bids on a part or parts of the subcontracts which it plans to award to third parties in

addition to the subcontracts mentioned in point 2 above In that case the contracting authori-

tyentity shall require that the tenderer specify in its tender those parts of the contract which it

plans to award as subcontracts to third parties in addition to the subcontracts mentioned in point 2 above

In addition to the provisions of subsections 2 and 3 the contracting authorityentity may re-

quire that the tenderer report any changes occurring at the subcontractor level during the im-

plementation of the contract

The contracting authorityentity shall set the maximum and minimum amount as defined in

subsection 3 point 2 having regard to the object and value of the contract and the character of the industry sector in question the competitive situation and technical capacity

The tenderer has the right to award more subcontracts to third parties than required by the contracting authorityentity in accordance with this Section

Section 63

Rejecting a subcontractor

The contracting authorityentity may specify requirements concerning the subcontractors fi-

nancial and economic situation technical capacity and professional competence information

security security of supply or quality These as well as other requirements concerning the

suitability of the subcontractor shall be stated in the contract notice These requirements shall

be equitable and non-discriminatory and conform to the requirements set in the invitation to tender concerning the suitability of the candidate or tenderer

The contracting authorityentity may decide to reject a subcontractor selected by the tenderer

during the contract procedure or the implementation of the contract if the subcontractor does

not meet the requirements set in the contract notice concerning the suitability of the subcon-

tractor or the exclusion criterion laid down in Section 47 or Section 48 applies to the subcon-

tractor The contracting authorityentity shall justify the rejection in writing to the tenderer

Section 64

Implementation of subcontracts

A tenderer selected as a contracting party shall act openly and treat any and all subcontractors

equally and in a non-discriminatory manner

A tenderer selected as a contracting party shall provide for the publication a subcontract notice

concerning those subcontracts to which the bidding obligation laid down in Section 62(3) ap-

plies and whose estimated value without value added tax exceeds the EU thresholds men-

tioned in Section 12 The notice obligation shall not apply to a subcontract which fulfills the

requirement set for a direct contract award mentioned in Sections 22ndash23 The provisions of

Sections 14ndash16 shall apply to the calculation of the estimated value of subcontracts

The tenderer selected as the contracting party shall specify in the subcontract notice the crite-

ria which the tenderer will apply in assessing the suitability of the subcontractors and in select-

ing them These criteria shall be equitable and non-discriminatory and conform to the criteria

that the contracting authorityentity applies in assessing the suitability of the tenderers The

requirements shall be related to the object of the subcontract and be proportional to the scope

of the subcontract

A tenderer selected as a contracting party may publish a subcontract notice also concerning

those subcontracts which meet the criteria for the subcontracts referred to in Sections 22ndash23

29

Section 65

Exemption from an obligation related to subcontracting

A tenderer selected as a contracting party may not be required to enter into a subcontract if it

indicates in a manner satisfactory to the contracting authorityentity that none of the subcon-

tractors that participated in the competition or none of their tenders fulfil the requirements

set in the subcontract notice and therefore the tenderer selected as a contracting party could

not fulfil the contract requirements

Section 66

Framework agreements

The provisions of Section 62 shall not apply to subcontracts awarded by the tenderer selected

as a contracting party if the framework agreement was put out to tender in accordance with

the provisions of Section 64

Subcontracts based on a framework agreement shall be awarded in accordance with the condi-

tions confirmed in the framework agreement and concluded between the original participants

to the framework agreement Conditions analogous to those of the framework agreement shall be complied with in subcontracting agreements

The framework agreement may not be used in such a way as to distort restrict or prevent

competition

The term of the framework agreement may not exceed seven years In exceptional cases the

framework agreement may be longer in duration when duly justified by the expected life cycle

of the supplies equipment and systems delivered and the technical problems that might re-

sult from the change of supplier

Section 67

The responsibility of the tenderer for carrying out the contract

The requirements set by the contracting authorityentity on the basis of this Chapter and the

notices issued by the tenderers based on them do not limit the responsibility of the tenderer

selected as a contracting party to carry out the contract PART III

National procedures

Chapter 10 Tendering procedures for contracts below the EU threshold for second-

ary service contracts referred to in Annex B and for certain other contracts

Section 68

Contract award procedures

The contract award procedures specified in this Chapter may be used for service contracts

public works contracts and the service contracts referred to in Annex A which are below the EU

threshold referred to in Section 12(1) but above the national threshold referred to in Section

13(1) and for secondary service contracts referred to in Annex B which are above the national

threshold referred to in Section 13(1)

The procedures laid down in this Chapter may also be used for defence contracts referred to in

Section 5 when the value of the defence contracts exceed the national threshold as referred to

in Section 13 provided that the criteria set in Article 346(1)(b) of TFEU are fulfilled

30

Section 69

General rules of procedure

The contracting authorityentity shall aim to take advantage of the prevailing competitive con-

ditions and award the contract primarily through competitive bidding A sufficient number of

tenders shall be requested in terms of the scope and subject matter of the contract to ensure

competition

A public notice shall be issued however the publication obligation does not apply in the case

of contracts that fulfil the criteria set in Article 346(1)(b) of TFEU

The contracting authorityentity may request a tender directly from one supplier if competitive

bidding cannot be carried out for reasons justified on the basis of national defence state secu-rity or security of supply

The contracting authorityentity may also request a tender directly from one supplier if

1) no tenders or no suitable tenders were received in the competitive bidding carried out

previously a further requirement is that the conditions of the original invitation to ten-

der are not fundamentally changed

2) for technical reasons or for reasons connected with the protection of exclusive rights the contract may be awarded only to a particular supplier

3) for reasons of urgency brought about by a crisis it is not possible to carry out competi-tive bidding

4) execution of the contract is absolutely necessary and competitive bidding cannot be

carried out for reasons of extreme urgency brought about by events unforeseeable by

and independent of the contracting authorityentity

5) the product to be acquired are manufactured purely for scientific or research purposes

and it is not a matter of establishing commercial viability of the products or to recover research and development costs

6) the object of the contract is a research and development service that has not been ex-cluded from the scope of this Act on the basis of Section 8

7) the contract is necessary in order to determine whether the final result of the research

and development service is suitable to be used as intended by the contracting authori-tyentity

8) the object of the contract consists of supplies quoted and purchased on a commodity market

9) the supplies are purchased on particularly advantageous terms from either a supplier

winding up its business activities or from the receivers of a bankruptcy or liquidators in

insolvency proceedings an arrangement with creditors or a similar procedure

10) the object of the contract is a second-hand product

11) the object of the contract is based on a supplementary contract right incorporated into

the contract

12) the object of the contract is additional deliveries by the original supplier which are in-

tended either as a partial replacement of existing supplies or installations or as the ex-

tension of existing supplies or installations and a change of supplier would result in in-

compatibility or disproportionate technical difficulties in operation and maintenance

13) the object of the contract is additional works or services not included in the project ini-

tially but which have through unforeseen circumstances become necessary for the per-

formance of the works or services as originally described

31

Section 70

Negotiations with tenderers and specifying the tender and the invitation to tender

The contracting authorityentity may discuss all aspects of the contract with the tenderers dur-

ing the negotiation provided that the negotiations do not result in changing constituent ele-

ments in the invitation to tender in a discriminating manner or in a manner which distorts

competition

The purpose of the negotiations shall be to select the best tender in accordance with Section

73(2) or to determine one or more alternative solutions for contract implementation before

sending the final invitation to tender The dialogue may take place in successive stages in or-

der to reduce the number of tenders or solutions to be discussed during the dialogue by apply-

ing the comparison criteria indicated in the invitation to tender or project description

In competitive bidding the requirement for negotiations shall be that the negotiations and the

criteria to be complied with during the negotiations have been stated in the invitation to tender

or the project description

The contracting authorityentity shall ensure equal treatment of all candidates and tenderers

during the negotiations and shall not provide information in a manner that may compromise

the equal treatment of the participants in competitive bidding

Section 71

Invitation to tender

The invitation to tender shall be submitted in writing and drawn up to be sufficiently clear in

order to enable submission of commensurate and mutually comparable tenders The invitation

to tender shall contain all information that is particularly important in terms of the contracting

procedure and submitting the tender

The invitation to tender shall include the award criterion and where the criterion for the award is that of the economically most advantageous tender the comparison criteria and the ranking thereof The invitation to tender shall indicate a reasonable time allotted for the tenderers to submit a tender taking into consideration the scope and subject matter of the contract

The contracting authorityentity may charge a reasonable fee for the invitation-to-tender doc-

uments to recover the costs arising from the exceptionally extensive scope of the documenta-

tion the materials related thereto or other similar factors

Section 72

Drawing up the invitation to tender and submitting the tender

The invitation to tender and the tenders based thereon shall be drawn up in writing They may be executed orally only in exceptional circumstances if the written procedure is justifiably not appropriate If the invitation to tender or the tenders are not drawn up in writing a record shall be kept of the negotiations held with the tenderers the record shall indicate the infor-mation impacting the course of the procedure and the position of the tenderers

Section 73

Selection of a tender and a tenderer rejecting a tender

The contracting authorityentity may exclude from the competitive bidding any supplier which

taking into consideration the scope and object of the contract and other criteria does not pos-

sess the qualifications to carry out the contract The contracting authorityentity may exclude

32

from the competitive bidding any tender submitted by a tenderer who does not possess the

qualifications to carry out the contract when taking into consideration the scope and object of

the contract and other criteria

The contracting authorityentity shall award the contract to the tenderer whose tender has the

lowest price or complies with the comparison criteria set in the invitation to tender and is eco-

nomically the most advantageous

The contracting authorityentity may reject a tender which does not fulfil the essential condi-

tions set in the invitation to tender or has an abnormally low price in terms of the subject mat-

ter and scope of the contract Before it may reject a tender the contracting authorityentity

shall request in writing details of the constituent elements of a tender that is abnormally low in

price

PART IV

General provisions on decisions concerning contract awards conclusion of contracts

procurement rectification public access to the contract documents and further provi-sions

Chapter 11

Decisions concerning the award of contracts and notification thereof

Section 74

Decision concerning the award

The contracting authorityentity shall provide in writing the decisions affecting the position of

the candidates and tenderers and the results of the tendering procedure including the grounds for the outcome of the procedure

The decision or the related documentation shall state the factors that fundamentally affected

the outcome including the grounds for rejecting the candidate tenderer or tender and the

grounds on which the accepted contracts were compared As regards a decision concerning

asking for bids for a contract based on a framework arrangement stating the facts showing

that the selection and award criteria have been applied as required under Section 27 shall

suffice If the standstill period referred to in Section 79 applies to the contract the decision or

the related documents shall also state the period of time after which the contract may be awarded

The contracting authorityentity is not required to make a decision referred to in this Section

concerning a contract for the additional supplies referred to in Section 23 or Section 69(4)(12)

and additional service or contract referred to in (13) or the temporary arrangements for a con-tract referred to in Section 95

In contracts based on framework agreements the contracting authorityentity is not required to make the decision referred to in this Section if

1) the contract is awarded in accordance with the conditions laid down in the framework

agreement without asking for bids or

2) the competitive bidding is based on a framework agreement when the value of the contract

does not exceed the EU threshold

33

Section 75

Suspending the contract award procedure

The contract award procedure can be suspended only for verifiable and justifiable reason

The provisions of Section 74 concerning contract ruling shall apply to the suspension of the

contract award procedure

Section 76

Appeal instructions and instructions for request for rectification

Instructions for appeal shall accompany the decisions made by the contracting authori-

tyentity explaining how to refer a case to the Market Court for consideration contact infor-

mation of the contracting authorityentity for the notice referred to in Section 90 and instruc-

tions for seeking rectification (petition instructions) explaining how the candidate or tenderer can have the case submitted for reconsideration through procurement rectification

With regard to the issuing and amending appeal and petition instructions the provisions of

Chapter 3 of the Administrative Judicial Procedure Act (5861996) shall apply in terms of ap-

peals and the provisions of Chapter 7 of the Administrative Procedure Act (4342003) shall

apply in terms of petition instructions

Section 77

Notification of the decision concerning the contract award

The decision of the contracting authorityentity including the grounds for the decision and the

appeal and petition instructions shall be submitted in writing to the parties concerned The de-

cision including the aforementioned documents shall be submitted using the electronic con-

tact information which the candidate or tenderer has given to the contracting authorityentity

When using the electronic contact information the candidate and tenderer shall be considered

to have received notice of the decision and the accompanying documents on the date on

which the electronic message containing the aforementioned documents is available in the re-

cipients reception equipment such that the message can be handled Such a point in time shall

mean the date on which the message was sent unless a reliable explanation concerning the

malfunction of telecommunications links or another analogous reason because of which the

electronic message reached the recipient later When electronic notification is used the con-

tracting authorityentity shall include in the message a separate note concerning the date

when the message was sent

The decision including the grounds for it and the appeal and petition instructions may also be

sent via regular mail under the Administrative Procedure Act Candidates and tenderers shall

be considered to have received notification of the decision and the accompanying documents

on the seventh day from the date on which they were sent unless the candidate or tenderer

proves that the notification occurred at a later date

Notification on the decision of the contracting authorityentity shall be issued without undue

delay at the latest 15 days from the date on which the contracting authorityentity receives a written request concerning notification on the decision that was made

34

Chapter 12

Public contract

Section 78

Concluding a public contract

Having made the decision to award a public contract the contracting authorityentity shall

conclude the contract The contract is concluded upon signing a written agreement

Section 79

Standstill period

In the case of a contract above the EU threshold referred to Section 12 above the contract can

be concluded at the earliest 21 days from the date when the candidate or tenderer received or is considered to have received the decision and instructions for appeal (standstill period)

A standstill period shall not be applied in direct contract awards

The provisions of Section 92 shall apply to the effect of an appeal on concluding a contract

Section 80

Exceptions to the compliance with the standstill period

The standstill period need not be upheld if

1) the contract concerns a procurement carried out on the basis of the framework agreement in accordance with Section 27

2) the contract is awarded to the tenderer who submitted the only acceptable tender and no

other tenderers or candidates remain in the competitive bidding whose position would be af-

fected by the selection of a co-contractor

3) the contract concerns a procurement referred to in Section 68(2)

Section 81

Notification of direct awards and conclusion of public contracts

In direct awards exceeding the EU threshold the contracting authorityentity may after hav-

ing made the award decision send a notice for publication concerning the direct award of con-

tract before concluding the contract In that case the contract can be concluded at the earli-est 14 days after the publication of the notice in the Official Journal of the European Union

Chapter 13

Procurement rectification

Section 82

Rectification of a procurement

The contracting authorityentity may remove an incorrect decision or annul an award decision

made during the contracting procedure concerning the legal status of the candidates or ten-

35

derers and make a new decision (procurement rectification) if the award decision or other deci-

sion reached during the contracting procedure is based on an error that occurred in the appli-cation of the law

Amending an award decision or other decision does not require the consent of the party con-

cerned However an award decision or other decision cannot be amended through procure-

ment rectification if the contract has been concluded

Section 83

Initiation of procurement rectification

The contracting authorityentity may take up a procurement rectification on its own initiative

or in response to a demand of the party in question The contracting authorityentity shall noti-fy the concerned parties immediately of the initiation of a procurement rectification

A subcontractor does not have the status of a concerned party referred to in subsection 1 of this section in terms of the matter concerning the contract

The concerned party shall present the demand within 14 days after receipt of the notification

of the award decision or other decision made by the contracting authorityentity during the

contracting procedure The contracting authorityentity itself may amend the award decision or

other decision no later than 60 days after the date the decision concerning the procurement rectification is made

Appealing the case to the Market Court does not prevent a procurement rectification or its pro-

cessing A procurement rectification may also apply to a decision of the contracting authori-

tyentity that has become legally binding if the case has not been submitted to the Market

Court for ruling

Section 84

Effect of the processing of procurement rectification on the proceedings in the Mar-ket Court

The initiation and processing of a procurement rectification do not affect the time limit within

which the concerned party has the right pursuant to this Act to submit an appeal against the

decision to the Market Court

If the award decision or other decision that was reached during the contract award procedure

is to be amended and has been appealed against before the Market Court the Market Court

shall be notified of the processing of the case through procurement rectification and informed

of the decision reached In processing a procurement rectification the contracting authori-

tyentity may prohibit the enforcement of the award decision or other decision or order it to be

suspended The Market Court shall be notified of a prohibition or suspension of enforcement if an appeal has been lodged against the decision in the Market Court

If the contracting authorityentity amends its award decision or other decision by means of a

procurement rectification such that as a result the appellant to the Market Court no longer has

the need for judicial relief or the need for a justified decision the Market Court may decline to

process such a case without giving a ruling on the principal claim

Section 85

The application of procurement rectification to other contracts

A procurement rectification can also be applied to amend an award decision or other decision

made by the contracting authorityentity during the contracting procedure to which this Act

36

shall not apply pursuant to Section 6(2) and Sections 7 8 or 13 A decision made on account

of such a contract rectification may not be appealed against in the Market Court or under the Administrative Judicial Procedure Act or Local Government (Act 3651995)

Chapter 14

Public access to the contract documents

Section 86

Application of the provisions concerning public access to the contract documents

The Act on the Openness of Government Activities (6211999) shall apply to public access to

the documents of the contracting authorityentity and the fees charged for the documents if

the contracting authorityentity is the authority referred to in Section 4 of the aforementioned

Act or if it is obliged to comply with that Act on the basis of a provision contained elsewhere in the Act

In terms of the right of parties other than the participants in the competitive bidding conducted

by the contracting authorityentity referred to in subsection 1 to have access to the docu-

ments drawn up and received for processing of the tender and the confidentiality obligation of

those employed by the contracting authorityentity the provisions of the Act on the Openness

of Government Activities shall apply to the right of concerned parties to have access to the

document to how public access to the document is determined and to the processing and resolving of the matter concerning access to information

The decision of the contracting authorityentity which has resolved the matter concerning ac-

cess to information can be appealed in accordance with the provisions of Section 33 of the Act

on the Openness of Government Activities The Supreme Administrative Court in whose judicial

district the contracting authorityentity is located is the competent Supreme Administrative

Court for considering the appeal submitted on the basis of a decision made by a party other

than the contracting authorityentity acting as an authority

Chapter 15

Appealing and the implications thereof

Section 87

Parties entitled to appeal

A concerned party may appeal the matter to the Market Court by issuing a complaint A sub-

contractor does not have the position of an interested party referred to in subsection 1 of this Section in terms of the matter concerning the contract

In matters concerning control procedures of the European Union the Ministry of Economic Af-

fairs and Employment may also refer the matter to the Market Court for consideration

Section 88

Object of the appeal

An appeal may be lodged before the Market Court against an award decision of the contracting

authorityentity referred to in this Act or other decision reached by the contracting authori-

tyentity during the contracting procedure which affects the status of the candidate or the ten-derer

37

An appeal may not be lodged before the Market Court against an award decision or other deci-

sion of the contracting authorityentity which concerns only the preparation of the contracting

procedure An appeal may not be lodged against a decision or other measure taken by the

supplier selected as a contracting party concerning a subcontracting agreement or an award

decision or determination made by the contracting authorityentity during the implementation of the contract

A contract based on a framework agreement referred to in Section 27 above and a contract

referred to in Section 68(2) may not be appealed unless a processing authorisation is issued by the Market Court The authorisation shall be issued if

1) the processing of the case is important in terms of applying the Act in other similar matters

or

2) there is a cogent reason for it related to the procedures of the contracting authorityentity

Section 89

Time period for appeal

Unless otherwise prescribed in this Section an appeal must be lodged in writing within 14 days

from the date when the candidate or tenderer received the notice concerning the contract with the instructions for appeal

If the contracting authorityentity has concluded a public contract after the contract decision

was issued on the basis of Section 80 point 1 without complying with the standstill period

the appeal shall be lodged within 30 days from the date when the tenderer has received notice

of the decision with the instructions for appeal

An appeal before the Market Court shall be lodged within six months of the date of the contract

decision provided that the candidate or tenderer has received notice of the contract decision

and the contract decision or appeal instructions were materially deficient or the appeal instruc-tions have been missing altogether

If the contracting authorityentity has with regard to a contract above the EU threshold re-

ferred to in Section 12 above delivered a notice regarding a direct award of contract for publi-

cation in the Official journal of the European Union the complaint must be lodged within 14 days from the publication of the notice

If the notice referred to in subsection 4 has not been published the appeal concerning a direct award of contract shall be lodged

1) within 30 days of the date of publication of a contract-award notice has been published in

the Official Journal of the European Union or

2) within six months from the conclusion of the contract at the latest

Section 90

Notification of appeal to the contracting authorityentity and the list of procurement

cases

The appellant in a contract-related matter must notify the contracting authorityentity in writ-ing of referring the case to the Market Court for consideration

The notification must be delivered to the contracting authorityentity at the latest when the

complaint concerning the contract is delivered to the Market Court The notification shall be delivered to the address provided by the contracting authorityentity

38

The Market Court shall maintain and publish a list which is as comprehensive and up-to-date

as possible of contract-related matters pending at the Market Court

Section 91

The contracting authorityentity as the opponent and compensation of legal costs

In the proceedings regarding contract-related matters the contracting authorityentity shall be considered the opponent of the party or agency lodging the appeal

The provisions of Section 74 subsections 1 and 2 of the Administrative Judicial Procedure Act shall apply to the compensation of legal costs regarding contract-related matters

The provisions of Section 74 subsections 1 and 2 of the administrative Judicial Procedure Act

concerning public authorities or other public parties shall apply to the decision concerning the

liability to provide compensation for the legal costs of the opponent If one contracting authori-

tyentity has been responsible for the contracting procedure on behalf of the other contracting

authorities the obligation regarding compensation of legal costs may be placed on the con-

tracting authorityentity which acted on behalf of the other contracting authorities

Section 92

The effect of the appeal on concluding the contract

In case of a contract where the standstill period or the time limit referred to in section 81 must

be observed the contracting authorityentity may not conclude the contract if the matter has

been brought up for consideration by the Market Court

If the Market Court decides a case concerning enforcement or decides on the principal claim

before the standstill period or the time limit referred to in Section 81 has expired the contract-

ing authorityentity shall observe the standstill period or the time limit referred to in Section

81 until the end of the period notwithstanding the ruling of the Market Court

Section 93

Interim decisions of the Market Court

While the appeal is under consideration the Market Court may prohibit suspend or allow the

implementation of the decision concerning the contract award or order the contracting proce-

dure to be suspended otherwise as an interim measure for the duration of the proceedings in the Market Court

When deciding on the measure referred to in subsection 1 the Market Court shall take into

consideration that the harm caused by the measure to the opponent the rights of third par-

ties the security of the state or the public interest may not outweigh its benefits

However the decision prescribed in subsection 1 of this Section cannot be carried out in the case of a contract referred to in Section 68(2) of this Act

A legally trained member of the Market Court may alone issue a ruling as an interim measure

Section 94

Interim commitment of the contracting authorityentity

While the appeal is under consideration the contracting authorityentity may provide a written

undertaking to the Market Court stating that it will not enforce the decision concerning the contract for as long as the matter is pending in the Market Court

39

If the contracting authorityentity provides the Market Court with the undertaking referred to

in subsection 1 the Market Court will not issue without a specific reason a decision on the

obligation to interim prohibition on implementing the decision to award the contract

Section 95

Temporary organisation of a contract

If an appeal has been lodged against a contract before the Market Court the contracting au-

thorityentity may temporarily organise the contract by ordering it from a supplier who partici-

pated in the contracting procedure or from a previous supplier if the nature of the contract is

such that executing the contract cannot be postponed for the duration of the Market Court pro-ceedings

Temporary contract arrangements must not hinder the execution of the following items by means of a decision of the Market Court

1) the decision of the contracting authorityentity to cancel the contract in full or in part

2) prohibit the contracting authorityentity from applying any erroneous item included in the contract document or otherwise complying with an incorrect procedure or

3) require the contracting authorityentity to rectify its incorrect procedure

Section 96

Sanctions imposed by the Market Court

If during the contract procedure actions have been taken which are against this Act or the provisions based thereon or against European Union legislation the Market Court may

1) cancel the decision of the contracting authorityentity in full or in part

2) prohibit the contracting authorityentity from applying any erroneous item included in the contract document or otherwise complying with an incorrect procedure

3) require the contracting authorityentity to correct its erroneous procedure

4) order the contracting authorityentity to pay a compensatory fee to the party which would

have had a genuine chance to win the bidding competition had the procedure been correct

5) impose an ineffectiveness sanction on the contracting authorityentity

6) order the contracting authorityentity to pay an infringement fine to the state

7) reduce the contract term to end after a period of time specified by the Market Court has

passed

The provisions of Sections 97ndash100 shall apply to determining the sanctions mentioned in sub-

section 1 points 4ndash7 above When determining these sanctions the Market Court may consid-

er the contract to have been concluded on the basis of specific circumstances provided that

the contracting authorityentity has especially commenced the implementation of the contract

The ineffectiveness sanctions infringement fine and reduction of contract terms may only be

issued in contracts exceeding the EU thresholds referred to in Section 12 However an ineffec-tiveness sanction cannot be imposed in a service contract in accordance with Annex B

Only a compensatory fee can be imposed in a contract referred to in Section 68(2) of this Act

40

Section 97

Compensation

Provision for compensation may be made if the harm caused to the contracting authori-

tyentity rights of third parties state security and the public interest by the measure defined

in Section 96(1)(1ndash3) is considered to outweigh the benefits or if the petition has been initiat-

ed following the conclusion of the contract With respect to setting the amount of the compen-

satory fee account shall be taken of the nature of the infringement or omission by the con-

tracting authorityentity the value of the contract in question and the costs and damages in-

curred by the petitioner The Market Court may however decide not to prove for compensa-

tion if the contracting authorityentity has refrained from implementing the contract during the proceedings in the Market Court

Without a specific reason the amount of compensation shall not exceed 10 percent of the val-

ue of the contract

Section 98

Ineffectiveness

The Market Court may declare a contract ineffective if

1) the contracting authorityentity has made a direct award of contract without the basis re-ferred to in this Act and the procedures referred to in Section 81

2) the contracting authorityentity has concluded the contract although there is an obligation in the contract to observe a standstill period

3) the contracting authorityentity has concluded the contract contrary to Section 92 although

the procurement case has been submitted to the Market Court for a decision

In addition a requirement in the situation referred to in subsection 1 points 2 and 3 above is

that the contracting authorityentity has made another infringement contrary to this Act which has affected the chances of the appellant to win the contract

If the contracting authorityentity has concluded the contract in a competition based on the

framework agreement on the basis of Section 80 without observing the standstill period and if

a breach has been committed in the competition in respect of Section 27(2 or 3) such that this

has affected the chances of the appellant to win the contract the Market Court may declare the contract ineffective

The Market Court shall decide to which contractual obligations ineffectiveness shall apply Inef-

fectiveness shall apply only to unfulfilled contractual obligations

Section 99

Non-imposition of ineffectiveness

In the situations referred to in Section 98 above the Market Court may decide not to impose

ineffectiveness for compelling reasons related to the public interest or state security Economic

interests which are directly related to the contract may be deemed compelling only if ineffec-tiveness of the contract would exceptionally have inequitable consequences

The Market Court may not impose ineffectiveness if it would result in serious endangerment of

the implementation of a defence and security project essentially important with respect to

state security

Section 100

41

Infringement fines and reduction of the contract term

The Market Court may order a contracting authorityentity to pay the state an infringement

fine if

1) the Market Court has declared the contract ineffective

2) the contracting authorityentity has concluded the contract although there is an obligation in the contract to observe a standstill period

3) the contracting authorityentity has concluded the contract contrary to Section 92 although the procurement case has been submitted to the Market Court for a decision or

4) the Market Court has decided not to declare the contract ineffective for compelling reasons related to the public interest or state security in accordance with Section 99

In the situation referred to in subsection 1 point 4 above the Market Court may in addition to

or instead of imposing a sanction reduce the contract term so that it ends after a period of time specified by the Court

The Market Court may order a contracting authorityentity to pay the state an infringement

fine or reduce the contract term so that it ends after a period of time specified by the Court

this applies to service contracts referred to in Annex B of this Act the value of which exceeds

the EU threshold as defined in Section 12 if the contracting authorityentity

1) has made a direct award of contract without the basis referred to in this Act and the proce-dures referred to in Section 81 not having been complied with in the direct award

2) has concluded the contract although there is an obligation in the contract to observe the standstill period

3) has concluded the contract contrary to Section 92 although the procurement case has been submitted to the Market Court for a decision or

4) has concluded the contract in a competition based on a framework agreement on the basis

of Section 80 without observing the standstill period and if a breach has been committed in the

competition in respect of Section 27(2 or 3) such that this has affected the chances of the ap-pellant to win the contract

In addition a requirement in the situation referred to in subsection 3 points 2 and 3 above is

that the contracting authorityentity has made another infringement contrary to this Act which

has affected the chances of the appellant to win the contract

With respect to issuing a sanction the Market Court shall take into account the nature of the

mistake or omission by the contracting authorityentity and the value of the contract in ques-

tion The sanction shall not exceed 10 percent of the value of the contract

Section 101

Allocation of sanctions and cumulative effect

If one contracting authorityentity has been responsible for the contracting procedure on be-

half of the other contracting authorities the obligation to compensate for legal costs can be

placed on the contracting authorityentity that acted on behalf of the other contracting authori-

ties

With respect to the sanctions referred to in this Act the Market Court shall take into considera-

tion that the cumulative effect may not become unreasonable for the contracting authori-

tyentity or its contracting party

42

Section 102

Conditional fine

The Market Court may impose a conditional fine in order to underline the importance of com-

plying with the prohibitions or obligations referred to in this Act The provisions of the Act on

Conditional Fines (11131990) shall apply to the imposing of and sentencing to the payment of

conditional fines

If one contracting authorityentity has been responsible for the contracting procedure on be-

half of the other contracting authorities the obligation to compensate for costs can be placed

on the contracting authorityentity that acted on behalf of the other contracting authorities

Section 103

Notification of the Market Courts ruling

The ruling of the Market Court along with the instructions for appeal shall be verifiably notified under the provisions of the Administrative Judicial Procedure Act

With the consent of the appellant and the contracting authorityentity the Market Courts deci-

sion together with the instructions for appeal may be publicised using the electronic contact

information the aforementioned parties have provided to the Market Court

When electronic contact information is used the appellant and the contracting authorityentity

shall be deemed to have been notified of the decision and instructions for appeal on the date

on which the message concerning the matter is available in the recipientsrsquo reception equipment

so that the message can be handled The provisions of Section 77(1) shall apply to electronic

notification

Section 104

Prohibition to appeal

A case that is within the jurisdiction of the Market Court cannot be appealed against under the

provisions of the Local Government Act or the Administrative Judicial Procedure Act

A decision or ruling concerning a contract which has been excluded from the scope of applica-

tion of this Act on the basis of Section 6(2) and Sections 78 or 13 may not be appealed under

the Administrative Judicial Procedure Act or the Local Government Act The subcontractor may

not under the Administrative Judicial Procedure Act or the Local Government Act appeal the

decision or action taken by the contracting authorityentity concerning the subcontract

Section 105

Appeals against the decisions of the Market Court

Appeals against a ruling of the Market Court can be lodged in the Supreme Administrative Court in accordance with the Administrative Judicial Procedure Act

As referred to in Section 93(1) an appeal cannot be lodged against the ruling by the Market

Court in the Supreme Administrative Court A ruling by the Market Court does not prevent the

case from being reconsidered by the Market Court if the grounds for the previous ruling have

changed

If the Market Court has ruled that it will not grant the processing authorisation referred to in

Section 88(3) then an appeal against this ruling can only be lodged if the Supreme Adminis-

trative Court grants a leave to appeal

43

Section 106

Application of the Administrative Judicial Procedure Act

The Administrative Judicial Procedure Act shall apply to appeals unless otherwise provided by this Act

Section 107

Implementation of rulings

A ruling of the Market Court has to be observed notwithstanding any appeal unless the Su-

preme Administrative Court orders otherwise The ruling of the Market Court issuing the sanc-

tion referred to in Section 96(1)(4ndash7) may only be implemented on the basis of a final ruling

The implementation of a ruling concerning a sanction shall be supervised by the Legal Register

Centre The Legal Register Centre must be informed of any ruling by the Market Court and

Supreme Administrative Court to issue a sanction

Section 108

Compensation for damages

Those who cause damage to a candidate tenderer or supplier shall be liable to pay compensa-

tion for the damage they have caused while acting in breach of this Act or any regulations based thereon or the European Union law

However when the claim for damages refers to costs incurred as a result of the tendering pro-

cedure the candidate or tenderer is entitled to compensation if it can provide proof of the in-

correct procedure as defined in subsection 1 and that had the procedure been correct it would have had a genuine chance to win the contract

In respect of the cases defined in subsection 1 and 2 a Court of first instance shall be the

competent court in accordance with Chapter 10 of the Code of Judicial Procedure

Chapter 16

Further provisions

Section 109

Disclosure of information

Notwithstanding the provisions concerning confidentiality provided for in the Act on the Open-

ness of Government Activities or in any other act the contracting authorityentity shall supply

statistics and other information concerning the different stages of the contract and performed

contracts to the Finnish authorities and European Union bodies to monitor contracts and ex-

change information on the scale and to the time limit required by European Union law Pursu-

ant to this Act the Ministry of Economic Affairs and Employment has the right to forward in-

formation it has received to the European Union authorities notwithstanding the regulations on confidentiality

The contracting authorityentity shall draw up a written report on each contract and framework

agreement which includes essential information on the contract contract procedure and the

candidates and tenderers who participated as well as on the decisions made in connection with

44

the contract The report and its main content shall be forwarded on request to the European

Commission A separate report is not required if corresponding information can be found in the

contract decision or other documents

To document the course of the realised contract procedure the contracting authorityentity

shall implement necessary measures in an electronic format

More specific rules are laid down in a Government decree on the obligation to provide statistics

and the responsibility of the contracting authorityentity to draw up reports on contract proce-

dures and contract decisions as referred to in subsection 1 which are to be forwarded to the

European Union bodies

Section 110

Entry into force and transitional provisions

This Act enters into force on 1 January 2012

If a contract procedure is started before the entry into force of this Act the provisions that

were in force at the time when this Act entered into force shall be applied The contract proce-

dure shall be deemed to have commenced when the contract notice was published A contract

which does not require the publication of the contract notice shall be deemed to have com-

menced when the invitation to tender or a meeting is sent or negotiations with suppliers begin

Measures necessary for the implementation of this Act may be undertaken before the Actrsquos

entry into force

45

ANNEX A

Primary services

Group No

Matter CPV Reference No

1 Maintenance and repair services 50000000-5 50100000-6-50884000-4 (except 50310000-1-50324200-4 and 50116510-9 50190000-3 50229000-6 50243000-0) and 51000000-9-51900000-1

2 Services related to international military assistance

75211300-1

3 Defence services military defence services and civil defence services

75220000-4 75221000-1 75222000-8

4 Investigation and security services 79700000-1-79720000-7

5 Land transport services 60000000-8 60100000-9-60183000-4 (except 60160000-7 60161000-4) and 64120000-3-64121200-2

6 Air transport services for passengers and freight except transport of mail

60400000-2 60410000-5-60424120-3 (except 60411000-2 60421000-5) 60440000-4-60445000-9 and 60500000-3

7 Transport of mail by land and by air 60160000-7 60161000-4 60411000-2 60421000-5

8 Railway transport services 60200000-0-60220000-6

9 Sea transport services 60600000-4-60653000-0 and 63727000-1-63727200-3

10 Support and auxiliary transport services 63100000-0-63111000-0 63120000-6-63121100-4 63122000-0 63512000-1 and 63520000-0-6370000-6

11 Telecommunications services 64200000-8-64228200-2 72318000-7 and 72700000-7-72720000-3

12 Financial services insurance services 66500000-5-66720000-3

13 Data-processing and related services 50310000-1-50324200-4 72000000-5-72920000-5 (except 72318000-7 and 72700000-7-72720000-3) 79342410-4 9342410-4

14 Research and development services(sup1) and evaluation tests

73000000-2-73436000-7

15 Accounting auditing and bookkeeping services

79210000-9-79212500-8

16 Management consulting(sup2) and related services

73200000-4-73220000-0 79400000-8-79421200-3 and 79342000-3 79342100-4 79342300-6 79342320-2 79342321-9 79910000-6 79991000-7 98362000-8

17 Architectural services engineering services and integrated engineering services urban planning and landscape architectural services related scientific and technical consulting services technical testing and analysis services

71000000-8-71900000-7(except 71550000-8) and 79994000-8

18 Building cleaning services and building and property management services

70300000-4-70340000-0 and 90900000-6-90924000-3

19 Sewage and refuse disposal services 90400000-1 to 90743200-9 (except 90712200-3)

46

sanitation and similar services 90910000-9-90920000-2 and 50190000-3 50229000-6 50243000-0

20 Training and simulation services in the fields of defence and security

80330000-6 80600000-0 80610000-3 80620000-6 80630000-9 80640000-2 80650000-5 80660000-8

(sup1) Except the research and development services referred to in Section 13(2)(5) (sup2) Except arbitration and conciliation services ANNEX B Secondary services

Group No

Matter CPV Reference No

21 Hotel and restaurant services 55100000-1-55524000-9 and 98340000-8-98341100-6

22 Support and auxiliary transport services 63000000-9-63734000-3 (except 63711200-8 63712700-0 63712710-3) 6372700-1-63727200-3 and 98361000-1

23 Legal services 79100000-5-79140000-7

24 Employment and personnel recruitment services(sup1)

79600000-0-79635000-4 (except 79611000-0 79632000-3 79633000-0) and 98500000-8-98514000-9

25 Health and social services 79611000-085000000-9 and -85323000-9 (except 85321000-5 and 85322000-2)

26 Other services

(sup1) Except employment contracts

47

ANNEX C NACEsup1ordm

Main category F CONSTRUCTION CPV code

2-digit level

3-digit level

4-digit level

Description Comments

45 Construction This two-digit level includes the following construction of new buildings and works reconstruction and common repairs

45000000

451 Site preparation

45100000

4511 Demolition and wreck-ing of buildings earth moving

This four-digit level includes the following - demolition of buildings and other structures - clearing of building sites and earth moving site excavation landfill and levelling trench dig-ging quarrying blasting etc - site preparation for mining

- overburden removal and other development and prepa-ration of mines and mining sites

This four-digit level also includes - building site underdrainage - drainage of agricultural or forestry land

45110000

4512 Test drilling This four-digit level includes the following - test drilling test boring and sampling for construction geophysical geological or similar purposes This four-digit level excludes the following - drilling of oil or gas wells comp 1120 - water well drilling 4525

45120000

sup1deg Council regulation (EEC) No 303790 (Official Journal of the European Union 293 24 October 1990 p 1) on the statistical classification of economic activities in the European Community issued on 9 October 1990 regulation as amended by Commission Regulation (EEC) No 76193 (Official Journal of the European Union L 83 3 April 1993 p 1) If there are differences of opinion between CPV and NACE NACE nomenclature shall apply

48

- shaft sinking comp 4525 - oil and gas field exploration geophysical geological and seismic surveying comp 7420

452 Building complete constructions or parts thereof

45200000

4521 Building work This four-digit level includes the following - Construction of all types of buildings - civil engineering and hydraulic engineering works - building of bridges including those for elevated highways metro tunnels - construction of long-distance pipelines communication cables and long-distance networks for power lines - construction of long-distance pipelines telecommunication ca-bles and municipal network power lines related installation work - on-site assembly and erection of pre-fabricated constructions This four-digit level excludes the following - services related to oil and gas extraction comp 1120 - erection of complete prefabricat-ed constructions from self-manufactured parts not of con-crete comp 20 26 28 - construction work other than buildings for stadiums swimming pools gymnasiums tennis courts golf courses and other sports installations comp 4523 building installation comp 453 - building completion comp 454 - architectural and engineering services comp 7420 - project management for construction comp 7420

45210000 Except 45213316 45220000 45231000 45232000

4522 Erection and covering of roofs

This four-digit level includes the following - erection of roofs - roof covering - waterproofing

45261000

49

4523 Construction of highways streets airports and sports equipment

This four-digit level includes the following - construction of highways streets other vehicular and pedestrian ways - construction of railways - construction of airfield runways - construction work other than build-ings for stadiums swimming pools gymnasiums tennis courts golf courses and other sports installations - painting of markings on road surfaces and car parks This four-digit level excludes the following - preliminary earth moving comp 4511

45212212 and DA03 45230000 except 45231000 45232000 45234115

4524 Construction of water projects

This four-digit level includes the following building works - construction of waterways harbour and river works marinas locks etc - construction of dams and breakwaters - dredging - subsurface work

45240000

4525 Other construction work

This four-digit level includes the following - construction activities specialising in one aspect common to different kinds of structures requiring specialised skill or equipment - construction of foundations including pile driving - water well drilling and construction shaft sinking - erection of non-self-manufactured steel frame elements - steel bending - bricklaying and stone setting - erecting and dismantling of scaffolds and work platforms including rental of scaffolds and work platforms - erection of chimneys and industrial ovens This four-digit level excludes the following - rental of scaffolds without erecting and dismantling comp 7132

45250000 45262000

453 Building installation 45300000

4531 Installation of electri-cal wiring and fittings

This four-digit level includes the installation in buildings or other

45213316 45310000

50

construction projects of - electrical wiring and fittings - telecommunications systems - electrical heating systems - residential antennas - fire alarms - burglar alarm systems - lifts and escalators - lightning conductors etc

Except 45316000

4532 Insulation work This four-digit level includes the following - installation in buildings or other construction projects of thermal sound or vibration insulation This four-digit level excludes the following - waterproofing comp 4522

45320000

4533 Plumbing This four-digit level includes the installation in buildings or other construction projects of the following - plumbing and sanitary equipment and fittings - gas fittings - heating ventilation refrigeration or air-conditioning equipment and ducts - sprinkler systems This four-digit level excludes the following - installation of electrical heating systems comp 4531

45330000

4534 Other installation work

This four-digit level includes the fol-lowing - installation or other construction of illumination and signalling systems for roads railways airports and harbours - installation in buildings or other construction projects of fittings and fixtures

45234115 45316000 45340000

454 Building completion 45400000

4541 Plastering This four-digit level includes the following - application in building or other construction projects of interior and exterior plaster or stucco and other similar lathing materials

45410000

4542 Joinery installation This four-digit level includes the following - installation of non-self-manufactured doors windows door

45420000

51

and window frames fitted kitchens staircases and shop fittings made of wood or other materials - completion of interiors such as ceilings wooden wall coverings wall paneling installation of movable partitions etc This four-digit level excludes the following - laying of parquet and other wooden floor coverings comp 4543

52

4543 Floor covering and wall upholstery

This four-digit level includes the following - covering or tiling of buildings or other structures using - ceramic concrete or stone wall or floor tiles or stones - parquet or other wooden floor covering - wall-to-wall carpeting or linoleum also rubber or plastic floor covering - wall or floor covering made of mosaic marble granite or slate - wallpaper

45430000

4544 Painting and glazing This four-digit level includes the following - interior and exterior painting of buildings - exterior painting of other structures - installation of mirrors glass etc This four-digit level excludes the following - installation of windows comp 4542

45440000

4545 Other building completion

This four-digit level includes the following - construction of private swimming pools - cleaning the exterior surfaces of buildings using steam sandblasting or other similar method - other building completion work not classified elsewhere This four-digit level excludes the following - cleaning of buildings and other structures comp 7470

45212212 and DA03 45450000

455 Rental of construction or dismantling equip-ment with operators

45500000

4550 Rental of construction or dismantling equip-ment with operators

This four-digit level excludes the following - rental of construction or dismantling machines and equipment without operators comp 7132

45500000

25

ing to Community law or relevant European or international standards concerning certification

The contracting authorityentity shall accept equivalent certificates from bodies established in

other European Union member states and other evidence of equivalent environmental man-agement measures from the suppliers

If appropriate to the object of the contract the contracting authorityentity may request that

the candidate or tenderer provide an indication of the quality assurance measures Should the

contracting authorityentity require the production of certificates drawn up by independent

bodies attesting to the compliance of the tenderer with quality assurance standards the con-

tracting authorityentity shall refer to quality assurance systems based on relevant European

standards series certified by bodies conforming to the European standards series concerning

certification The contracting authorityentity shall accept equivalent certificates from bodies

established in other European Union member states and other evidence of equivalent quality assurance measures from the tenderers

If for any valid reason the candidate or tenderer is unable to provide the documents request-

ed by the contracting authorityentity it may demonstrate its economic and financial standing by any other document which the contracting authorityentity considers appropriate

Section 54

Requirements on information security set for candidates and tenderers

If classified documents are submitted drawn up or otherwise dealt with to carry out a call for

tender the contracting authorityentity may set requirements for candidates or tenderers to

meet the information security requirements laid down for authorities The contracting authori-

tyentity may request candidates or tenderers to provide commitments or information which

prove their capacity to meet the information security requirements

For candidates who have not obtained the certificate or commitment referred to in Section 1

the contracting authorityentity may grant additional time to obtain the certificate or commit-

ment In that case a deadline shall be set for the delivery of these In addition to the com-

mitments and information provided by the candidate the contracting authorityentity may render and consider any supplemental investigations it has conducted

Section 55

Legal form of the candidate and the tenderer and indication of the responsible per-sons

A candidate or tenderer which under the legislation of the country in which it is established is

entitled to provide the services that are the object of the contract may not be rejected solely

on the ground that under the legislation of the European Union member state in which the contract is awarded it would be required to be either a natural or legal person

In the case of public service and public works contracts as well as public supply contracts in-

volving siting and installation operations the contracting authorityentity may require candi-

dates and tenderers to indicate in the tender or the request to participate the names and pro-

fessional qualifications of the persons responsible for carrying out the services or the work in question

Section 56

Groups participating in the competitive bidding and reliance on the capacities of oth-er entities

Groups of suppliers may submit tenders or put themselves forward as candidates The con-

tracting authorityentity may not require these groups of candidates or tenderers to assume a

specific legal form in order to submit a tender or a request to participate However the group

may be required to do so during the term of the contract to the extent that this change is necessary for the satisfactory performance of the contract

26

A candidate or tenderer may rely on the capacities of other entities regardless of the legal na-

ture of the links it has with them to carry out the contract A group may rely on the abilities of

participants in the group or in other entities in order to perform the contract The candidate or

tenderer or a group thereof shall furnish the contracting authorityentity with proof that the

requirements relating to economic and financial standing technical capacity and professional

ability and other requirements are satisfied This proof may include contracts between compa-

nies or other binding documents demonstrating that the capacities to satisfy the requirements are accessible by the candidates or tenderers

Section 57

Selecting the tender

The contract awarded shall be either the economically most advantageous tender from the

point of view of the contracting authorityentity in accordance with the comparison criteria

linked to the object of the contract or the lowest in price When the award is made to the eco-

nomically most advantageous tender the criteria may include for example quality price

technical merit aesthetic and functional characteristics environmentally friendly characteris-

tics running costs costs associated with a long life cycle cost effectiveness after-sales ser-

vice and technical assistance delivery date delivery period and period of completion security of supply and interoperability and functional characteristics

The contracting authorityentity shall specify in the contract notice or the invitation to tender

documentation the comparison criteria and the relative weighting which it gives to each of the

criteria chosen to determine the economically most advantageous tender In the competitive

dialogue procedure the equivalent information shall be specified in the contract notice or the

project description The weighting may also be specified by indicating a reasonable range If it

is not reasonably possible to specify the relative weighting of the comparison criteria they

shall be specified in the order of importance

Section 58

Abnormally low tenders

The contracting authorityentity may reject tenders that are abnormally low in relation to the

quality and scope of the contract Before it may reject a tender the contracting authori-

tyentity shall request in writing a written report from the tenderer on the constituent ele-ments of the tender

The request referred to in subsection 1 may relate in particular to the economic and technical

solutions chosen for the manufacture of the goods supply of the service or execution of the

work exceptionally favourable conditions for the execution of the contract the originality of

the proposed solution employment protection at the place where the contract is executed and

compliance with the provisions relating to working conditions or the possibility of the tenderer

receiving state aid The contracting authorityentity shall verify the constituent elements of the tender taking into account the evidence supplied

The contracting authorityentity may reject a tender which is abnormally low in price because

the tenderer has obtained state aid illegally The tender can be rejected only after a sufficient

time limit has been fixed for the tenderer to prove that the state aid in question was granted

legally If the contracting authorityentity rejects the tender because of illegal state aid it shall report the matter to the European Commission

Section 59

Taking account of a subsidy awarded by the contracting authorityentity in the com-parison of tenders

If the tenderer is an entity belonging to the contracting authorityentitys organisation or if the

contracting authorityentity has granted or will grant the tenderer a financial subsidy which will

affect the price of the tender in the comparison of the tenders the contracting authorityentity

27

shall take into account the factors which will genuinely affect the price of the tender paid by

the contracting authorityentity such as the financial subsidy in question

Chapter 9 Subcontract agreements

Section 60

Subcontracts with related companies

The contracting authorityentity may request the tenderer to state in its tender which part of

the contract it plans to award as a subcontract to related companies and to list these compa-

nies The contracting authorityentity may also request tenderers submitting tenders as a

group as defined in Section 56 to indicate in their tender which part of the contract they plan

to award as a subcontract to their related companies and to list these companies If the rela-

tionships between the companies change during the procurement procedure the tenderer shall update the information included in its tender

A related company means a company which is under the direct or indirect control of the ten-

derer or which has direct or indirect control of the tenderer or which jointly with the tenderer

is under the control of another company on the basis of ownership financial contribution or the

regulations under which the company operates A company is considered to have control of

another company when it owns the majority of that companys unrestricted shareholder equity

controls the majority of the companys shareholders voting rights or may appoint half of the

members of the companys administrative managerial or supervisory body

The provisions of Sections 62-66 of this Act concerning subcontracting agreements are not

applicable to subcontracting agreements which the tenderer has entered into with a related

company or when the tender has been submitted by a group as defined in Section 56 to a

company belonging to the same group or a company which is a related company of a company

belonging to the group

Section 61

Selecting a subcontractor

The tenderer may select its subcontractors in all subcontracting agreements unless otherwise prescribed in Sections 62ndash66 of this Act

Section 62

Requirements concerning subcontracting agreements

The contracting authorityentity shall define the requirements for a subcontracting agreement

in the contract notice and further specify them in the invitation to tender In defining the re-

quirements for subcontracting agreements the principles of proportionality and non-discrimination must be complied with

The contracting authorityentity may require that the tenderer state in the tender which part

or parts of the contract it plans to subcontract to third parties the content of the subcontract-ing agreement and the chosen subcontractors shall also be stated

In addition to the provisions of subsection 2 the contracting authorityentity may require that

the tenderer selected as a contracting party shall

1) in accordance with the procedures laid down in Sections 64ndash66 of this Act invite bids on

part or all of the subcontracts included in the tender and stated in the notice in accordance with subsection 2 or

2) award the minimum amount of the contract value as defined by the contracting authori-

tyentity to third parties as subcontracts and invite bids on these subcontracts in accordance

with the procedures laid down in Sections 64ndash66 of this Act The contracting authorityentity

shall in that case define as percentages the minimum and maximum amount the tenderer shall

award to third parties as subcontracts and require that the tenderer state in its tender which

28

part or parts of the contract it plans to award to third parties as subcontracts in order to fulfil

the requirement of the contracting authorityentity The maximum amount defined by the con-tracting authorityentity shall not exceed 30 percent of the value of the contract or

3) invite bids on a part or parts of the subcontracts which it plans to award to third parties in

addition to the subcontracts mentioned in point 2 above In that case the contracting authori-

tyentity shall require that the tenderer specify in its tender those parts of the contract which it

plans to award as subcontracts to third parties in addition to the subcontracts mentioned in point 2 above

In addition to the provisions of subsections 2 and 3 the contracting authorityentity may re-

quire that the tenderer report any changes occurring at the subcontractor level during the im-

plementation of the contract

The contracting authorityentity shall set the maximum and minimum amount as defined in

subsection 3 point 2 having regard to the object and value of the contract and the character of the industry sector in question the competitive situation and technical capacity

The tenderer has the right to award more subcontracts to third parties than required by the contracting authorityentity in accordance with this Section

Section 63

Rejecting a subcontractor

The contracting authorityentity may specify requirements concerning the subcontractors fi-

nancial and economic situation technical capacity and professional competence information

security security of supply or quality These as well as other requirements concerning the

suitability of the subcontractor shall be stated in the contract notice These requirements shall

be equitable and non-discriminatory and conform to the requirements set in the invitation to tender concerning the suitability of the candidate or tenderer

The contracting authorityentity may decide to reject a subcontractor selected by the tenderer

during the contract procedure or the implementation of the contract if the subcontractor does

not meet the requirements set in the contract notice concerning the suitability of the subcon-

tractor or the exclusion criterion laid down in Section 47 or Section 48 applies to the subcon-

tractor The contracting authorityentity shall justify the rejection in writing to the tenderer

Section 64

Implementation of subcontracts

A tenderer selected as a contracting party shall act openly and treat any and all subcontractors

equally and in a non-discriminatory manner

A tenderer selected as a contracting party shall provide for the publication a subcontract notice

concerning those subcontracts to which the bidding obligation laid down in Section 62(3) ap-

plies and whose estimated value without value added tax exceeds the EU thresholds men-

tioned in Section 12 The notice obligation shall not apply to a subcontract which fulfills the

requirement set for a direct contract award mentioned in Sections 22ndash23 The provisions of

Sections 14ndash16 shall apply to the calculation of the estimated value of subcontracts

The tenderer selected as the contracting party shall specify in the subcontract notice the crite-

ria which the tenderer will apply in assessing the suitability of the subcontractors and in select-

ing them These criteria shall be equitable and non-discriminatory and conform to the criteria

that the contracting authorityentity applies in assessing the suitability of the tenderers The

requirements shall be related to the object of the subcontract and be proportional to the scope

of the subcontract

A tenderer selected as a contracting party may publish a subcontract notice also concerning

those subcontracts which meet the criteria for the subcontracts referred to in Sections 22ndash23

29

Section 65

Exemption from an obligation related to subcontracting

A tenderer selected as a contracting party may not be required to enter into a subcontract if it

indicates in a manner satisfactory to the contracting authorityentity that none of the subcon-

tractors that participated in the competition or none of their tenders fulfil the requirements

set in the subcontract notice and therefore the tenderer selected as a contracting party could

not fulfil the contract requirements

Section 66

Framework agreements

The provisions of Section 62 shall not apply to subcontracts awarded by the tenderer selected

as a contracting party if the framework agreement was put out to tender in accordance with

the provisions of Section 64

Subcontracts based on a framework agreement shall be awarded in accordance with the condi-

tions confirmed in the framework agreement and concluded between the original participants

to the framework agreement Conditions analogous to those of the framework agreement shall be complied with in subcontracting agreements

The framework agreement may not be used in such a way as to distort restrict or prevent

competition

The term of the framework agreement may not exceed seven years In exceptional cases the

framework agreement may be longer in duration when duly justified by the expected life cycle

of the supplies equipment and systems delivered and the technical problems that might re-

sult from the change of supplier

Section 67

The responsibility of the tenderer for carrying out the contract

The requirements set by the contracting authorityentity on the basis of this Chapter and the

notices issued by the tenderers based on them do not limit the responsibility of the tenderer

selected as a contracting party to carry out the contract PART III

National procedures

Chapter 10 Tendering procedures for contracts below the EU threshold for second-

ary service contracts referred to in Annex B and for certain other contracts

Section 68

Contract award procedures

The contract award procedures specified in this Chapter may be used for service contracts

public works contracts and the service contracts referred to in Annex A which are below the EU

threshold referred to in Section 12(1) but above the national threshold referred to in Section

13(1) and for secondary service contracts referred to in Annex B which are above the national

threshold referred to in Section 13(1)

The procedures laid down in this Chapter may also be used for defence contracts referred to in

Section 5 when the value of the defence contracts exceed the national threshold as referred to

in Section 13 provided that the criteria set in Article 346(1)(b) of TFEU are fulfilled

30

Section 69

General rules of procedure

The contracting authorityentity shall aim to take advantage of the prevailing competitive con-

ditions and award the contract primarily through competitive bidding A sufficient number of

tenders shall be requested in terms of the scope and subject matter of the contract to ensure

competition

A public notice shall be issued however the publication obligation does not apply in the case

of contracts that fulfil the criteria set in Article 346(1)(b) of TFEU

The contracting authorityentity may request a tender directly from one supplier if competitive

bidding cannot be carried out for reasons justified on the basis of national defence state secu-rity or security of supply

The contracting authorityentity may also request a tender directly from one supplier if

1) no tenders or no suitable tenders were received in the competitive bidding carried out

previously a further requirement is that the conditions of the original invitation to ten-

der are not fundamentally changed

2) for technical reasons or for reasons connected with the protection of exclusive rights the contract may be awarded only to a particular supplier

3) for reasons of urgency brought about by a crisis it is not possible to carry out competi-tive bidding

4) execution of the contract is absolutely necessary and competitive bidding cannot be

carried out for reasons of extreme urgency brought about by events unforeseeable by

and independent of the contracting authorityentity

5) the product to be acquired are manufactured purely for scientific or research purposes

and it is not a matter of establishing commercial viability of the products or to recover research and development costs

6) the object of the contract is a research and development service that has not been ex-cluded from the scope of this Act on the basis of Section 8

7) the contract is necessary in order to determine whether the final result of the research

and development service is suitable to be used as intended by the contracting authori-tyentity

8) the object of the contract consists of supplies quoted and purchased on a commodity market

9) the supplies are purchased on particularly advantageous terms from either a supplier

winding up its business activities or from the receivers of a bankruptcy or liquidators in

insolvency proceedings an arrangement with creditors or a similar procedure

10) the object of the contract is a second-hand product

11) the object of the contract is based on a supplementary contract right incorporated into

the contract

12) the object of the contract is additional deliveries by the original supplier which are in-

tended either as a partial replacement of existing supplies or installations or as the ex-

tension of existing supplies or installations and a change of supplier would result in in-

compatibility or disproportionate technical difficulties in operation and maintenance

13) the object of the contract is additional works or services not included in the project ini-

tially but which have through unforeseen circumstances become necessary for the per-

formance of the works or services as originally described

31

Section 70

Negotiations with tenderers and specifying the tender and the invitation to tender

The contracting authorityentity may discuss all aspects of the contract with the tenderers dur-

ing the negotiation provided that the negotiations do not result in changing constituent ele-

ments in the invitation to tender in a discriminating manner or in a manner which distorts

competition

The purpose of the negotiations shall be to select the best tender in accordance with Section

73(2) or to determine one or more alternative solutions for contract implementation before

sending the final invitation to tender The dialogue may take place in successive stages in or-

der to reduce the number of tenders or solutions to be discussed during the dialogue by apply-

ing the comparison criteria indicated in the invitation to tender or project description

In competitive bidding the requirement for negotiations shall be that the negotiations and the

criteria to be complied with during the negotiations have been stated in the invitation to tender

or the project description

The contracting authorityentity shall ensure equal treatment of all candidates and tenderers

during the negotiations and shall not provide information in a manner that may compromise

the equal treatment of the participants in competitive bidding

Section 71

Invitation to tender

The invitation to tender shall be submitted in writing and drawn up to be sufficiently clear in

order to enable submission of commensurate and mutually comparable tenders The invitation

to tender shall contain all information that is particularly important in terms of the contracting

procedure and submitting the tender

The invitation to tender shall include the award criterion and where the criterion for the award is that of the economically most advantageous tender the comparison criteria and the ranking thereof The invitation to tender shall indicate a reasonable time allotted for the tenderers to submit a tender taking into consideration the scope and subject matter of the contract

The contracting authorityentity may charge a reasonable fee for the invitation-to-tender doc-

uments to recover the costs arising from the exceptionally extensive scope of the documenta-

tion the materials related thereto or other similar factors

Section 72

Drawing up the invitation to tender and submitting the tender

The invitation to tender and the tenders based thereon shall be drawn up in writing They may be executed orally only in exceptional circumstances if the written procedure is justifiably not appropriate If the invitation to tender or the tenders are not drawn up in writing a record shall be kept of the negotiations held with the tenderers the record shall indicate the infor-mation impacting the course of the procedure and the position of the tenderers

Section 73

Selection of a tender and a tenderer rejecting a tender

The contracting authorityentity may exclude from the competitive bidding any supplier which

taking into consideration the scope and object of the contract and other criteria does not pos-

sess the qualifications to carry out the contract The contracting authorityentity may exclude

32

from the competitive bidding any tender submitted by a tenderer who does not possess the

qualifications to carry out the contract when taking into consideration the scope and object of

the contract and other criteria

The contracting authorityentity shall award the contract to the tenderer whose tender has the

lowest price or complies with the comparison criteria set in the invitation to tender and is eco-

nomically the most advantageous

The contracting authorityentity may reject a tender which does not fulfil the essential condi-

tions set in the invitation to tender or has an abnormally low price in terms of the subject mat-

ter and scope of the contract Before it may reject a tender the contracting authorityentity

shall request in writing details of the constituent elements of a tender that is abnormally low in

price

PART IV

General provisions on decisions concerning contract awards conclusion of contracts

procurement rectification public access to the contract documents and further provi-sions

Chapter 11

Decisions concerning the award of contracts and notification thereof

Section 74

Decision concerning the award

The contracting authorityentity shall provide in writing the decisions affecting the position of

the candidates and tenderers and the results of the tendering procedure including the grounds for the outcome of the procedure

The decision or the related documentation shall state the factors that fundamentally affected

the outcome including the grounds for rejecting the candidate tenderer or tender and the

grounds on which the accepted contracts were compared As regards a decision concerning

asking for bids for a contract based on a framework arrangement stating the facts showing

that the selection and award criteria have been applied as required under Section 27 shall

suffice If the standstill period referred to in Section 79 applies to the contract the decision or

the related documents shall also state the period of time after which the contract may be awarded

The contracting authorityentity is not required to make a decision referred to in this Section

concerning a contract for the additional supplies referred to in Section 23 or Section 69(4)(12)

and additional service or contract referred to in (13) or the temporary arrangements for a con-tract referred to in Section 95

In contracts based on framework agreements the contracting authorityentity is not required to make the decision referred to in this Section if

1) the contract is awarded in accordance with the conditions laid down in the framework

agreement without asking for bids or

2) the competitive bidding is based on a framework agreement when the value of the contract

does not exceed the EU threshold

33

Section 75

Suspending the contract award procedure

The contract award procedure can be suspended only for verifiable and justifiable reason

The provisions of Section 74 concerning contract ruling shall apply to the suspension of the

contract award procedure

Section 76

Appeal instructions and instructions for request for rectification

Instructions for appeal shall accompany the decisions made by the contracting authori-

tyentity explaining how to refer a case to the Market Court for consideration contact infor-

mation of the contracting authorityentity for the notice referred to in Section 90 and instruc-

tions for seeking rectification (petition instructions) explaining how the candidate or tenderer can have the case submitted for reconsideration through procurement rectification

With regard to the issuing and amending appeal and petition instructions the provisions of

Chapter 3 of the Administrative Judicial Procedure Act (5861996) shall apply in terms of ap-

peals and the provisions of Chapter 7 of the Administrative Procedure Act (4342003) shall

apply in terms of petition instructions

Section 77

Notification of the decision concerning the contract award

The decision of the contracting authorityentity including the grounds for the decision and the

appeal and petition instructions shall be submitted in writing to the parties concerned The de-

cision including the aforementioned documents shall be submitted using the electronic con-

tact information which the candidate or tenderer has given to the contracting authorityentity

When using the electronic contact information the candidate and tenderer shall be considered

to have received notice of the decision and the accompanying documents on the date on

which the electronic message containing the aforementioned documents is available in the re-

cipients reception equipment such that the message can be handled Such a point in time shall

mean the date on which the message was sent unless a reliable explanation concerning the

malfunction of telecommunications links or another analogous reason because of which the

electronic message reached the recipient later When electronic notification is used the con-

tracting authorityentity shall include in the message a separate note concerning the date

when the message was sent

The decision including the grounds for it and the appeal and petition instructions may also be

sent via regular mail under the Administrative Procedure Act Candidates and tenderers shall

be considered to have received notification of the decision and the accompanying documents

on the seventh day from the date on which they were sent unless the candidate or tenderer

proves that the notification occurred at a later date

Notification on the decision of the contracting authorityentity shall be issued without undue

delay at the latest 15 days from the date on which the contracting authorityentity receives a written request concerning notification on the decision that was made

34

Chapter 12

Public contract

Section 78

Concluding a public contract

Having made the decision to award a public contract the contracting authorityentity shall

conclude the contract The contract is concluded upon signing a written agreement

Section 79

Standstill period

In the case of a contract above the EU threshold referred to Section 12 above the contract can

be concluded at the earliest 21 days from the date when the candidate or tenderer received or is considered to have received the decision and instructions for appeal (standstill period)

A standstill period shall not be applied in direct contract awards

The provisions of Section 92 shall apply to the effect of an appeal on concluding a contract

Section 80

Exceptions to the compliance with the standstill period

The standstill period need not be upheld if

1) the contract concerns a procurement carried out on the basis of the framework agreement in accordance with Section 27

2) the contract is awarded to the tenderer who submitted the only acceptable tender and no

other tenderers or candidates remain in the competitive bidding whose position would be af-

fected by the selection of a co-contractor

3) the contract concerns a procurement referred to in Section 68(2)

Section 81

Notification of direct awards and conclusion of public contracts

In direct awards exceeding the EU threshold the contracting authorityentity may after hav-

ing made the award decision send a notice for publication concerning the direct award of con-

tract before concluding the contract In that case the contract can be concluded at the earli-est 14 days after the publication of the notice in the Official Journal of the European Union

Chapter 13

Procurement rectification

Section 82

Rectification of a procurement

The contracting authorityentity may remove an incorrect decision or annul an award decision

made during the contracting procedure concerning the legal status of the candidates or ten-

35

derers and make a new decision (procurement rectification) if the award decision or other deci-

sion reached during the contracting procedure is based on an error that occurred in the appli-cation of the law

Amending an award decision or other decision does not require the consent of the party con-

cerned However an award decision or other decision cannot be amended through procure-

ment rectification if the contract has been concluded

Section 83

Initiation of procurement rectification

The contracting authorityentity may take up a procurement rectification on its own initiative

or in response to a demand of the party in question The contracting authorityentity shall noti-fy the concerned parties immediately of the initiation of a procurement rectification

A subcontractor does not have the status of a concerned party referred to in subsection 1 of this section in terms of the matter concerning the contract

The concerned party shall present the demand within 14 days after receipt of the notification

of the award decision or other decision made by the contracting authorityentity during the

contracting procedure The contracting authorityentity itself may amend the award decision or

other decision no later than 60 days after the date the decision concerning the procurement rectification is made

Appealing the case to the Market Court does not prevent a procurement rectification or its pro-

cessing A procurement rectification may also apply to a decision of the contracting authori-

tyentity that has become legally binding if the case has not been submitted to the Market

Court for ruling

Section 84

Effect of the processing of procurement rectification on the proceedings in the Mar-ket Court

The initiation and processing of a procurement rectification do not affect the time limit within

which the concerned party has the right pursuant to this Act to submit an appeal against the

decision to the Market Court

If the award decision or other decision that was reached during the contract award procedure

is to be amended and has been appealed against before the Market Court the Market Court

shall be notified of the processing of the case through procurement rectification and informed

of the decision reached In processing a procurement rectification the contracting authori-

tyentity may prohibit the enforcement of the award decision or other decision or order it to be

suspended The Market Court shall be notified of a prohibition or suspension of enforcement if an appeal has been lodged against the decision in the Market Court

If the contracting authorityentity amends its award decision or other decision by means of a

procurement rectification such that as a result the appellant to the Market Court no longer has

the need for judicial relief or the need for a justified decision the Market Court may decline to

process such a case without giving a ruling on the principal claim

Section 85

The application of procurement rectification to other contracts

A procurement rectification can also be applied to amend an award decision or other decision

made by the contracting authorityentity during the contracting procedure to which this Act

36

shall not apply pursuant to Section 6(2) and Sections 7 8 or 13 A decision made on account

of such a contract rectification may not be appealed against in the Market Court or under the Administrative Judicial Procedure Act or Local Government (Act 3651995)

Chapter 14

Public access to the contract documents

Section 86

Application of the provisions concerning public access to the contract documents

The Act on the Openness of Government Activities (6211999) shall apply to public access to

the documents of the contracting authorityentity and the fees charged for the documents if

the contracting authorityentity is the authority referred to in Section 4 of the aforementioned

Act or if it is obliged to comply with that Act on the basis of a provision contained elsewhere in the Act

In terms of the right of parties other than the participants in the competitive bidding conducted

by the contracting authorityentity referred to in subsection 1 to have access to the docu-

ments drawn up and received for processing of the tender and the confidentiality obligation of

those employed by the contracting authorityentity the provisions of the Act on the Openness

of Government Activities shall apply to the right of concerned parties to have access to the

document to how public access to the document is determined and to the processing and resolving of the matter concerning access to information

The decision of the contracting authorityentity which has resolved the matter concerning ac-

cess to information can be appealed in accordance with the provisions of Section 33 of the Act

on the Openness of Government Activities The Supreme Administrative Court in whose judicial

district the contracting authorityentity is located is the competent Supreme Administrative

Court for considering the appeal submitted on the basis of a decision made by a party other

than the contracting authorityentity acting as an authority

Chapter 15

Appealing and the implications thereof

Section 87

Parties entitled to appeal

A concerned party may appeal the matter to the Market Court by issuing a complaint A sub-

contractor does not have the position of an interested party referred to in subsection 1 of this Section in terms of the matter concerning the contract

In matters concerning control procedures of the European Union the Ministry of Economic Af-

fairs and Employment may also refer the matter to the Market Court for consideration

Section 88

Object of the appeal

An appeal may be lodged before the Market Court against an award decision of the contracting

authorityentity referred to in this Act or other decision reached by the contracting authori-

tyentity during the contracting procedure which affects the status of the candidate or the ten-derer

37

An appeal may not be lodged before the Market Court against an award decision or other deci-

sion of the contracting authorityentity which concerns only the preparation of the contracting

procedure An appeal may not be lodged against a decision or other measure taken by the

supplier selected as a contracting party concerning a subcontracting agreement or an award

decision or determination made by the contracting authorityentity during the implementation of the contract

A contract based on a framework agreement referred to in Section 27 above and a contract

referred to in Section 68(2) may not be appealed unless a processing authorisation is issued by the Market Court The authorisation shall be issued if

1) the processing of the case is important in terms of applying the Act in other similar matters

or

2) there is a cogent reason for it related to the procedures of the contracting authorityentity

Section 89

Time period for appeal

Unless otherwise prescribed in this Section an appeal must be lodged in writing within 14 days

from the date when the candidate or tenderer received the notice concerning the contract with the instructions for appeal

If the contracting authorityentity has concluded a public contract after the contract decision

was issued on the basis of Section 80 point 1 without complying with the standstill period

the appeal shall be lodged within 30 days from the date when the tenderer has received notice

of the decision with the instructions for appeal

An appeal before the Market Court shall be lodged within six months of the date of the contract

decision provided that the candidate or tenderer has received notice of the contract decision

and the contract decision or appeal instructions were materially deficient or the appeal instruc-tions have been missing altogether

If the contracting authorityentity has with regard to a contract above the EU threshold re-

ferred to in Section 12 above delivered a notice regarding a direct award of contract for publi-

cation in the Official journal of the European Union the complaint must be lodged within 14 days from the publication of the notice

If the notice referred to in subsection 4 has not been published the appeal concerning a direct award of contract shall be lodged

1) within 30 days of the date of publication of a contract-award notice has been published in

the Official Journal of the European Union or

2) within six months from the conclusion of the contract at the latest

Section 90

Notification of appeal to the contracting authorityentity and the list of procurement

cases

The appellant in a contract-related matter must notify the contracting authorityentity in writ-ing of referring the case to the Market Court for consideration

The notification must be delivered to the contracting authorityentity at the latest when the

complaint concerning the contract is delivered to the Market Court The notification shall be delivered to the address provided by the contracting authorityentity

38

The Market Court shall maintain and publish a list which is as comprehensive and up-to-date

as possible of contract-related matters pending at the Market Court

Section 91

The contracting authorityentity as the opponent and compensation of legal costs

In the proceedings regarding contract-related matters the contracting authorityentity shall be considered the opponent of the party or agency lodging the appeal

The provisions of Section 74 subsections 1 and 2 of the Administrative Judicial Procedure Act shall apply to the compensation of legal costs regarding contract-related matters

The provisions of Section 74 subsections 1 and 2 of the administrative Judicial Procedure Act

concerning public authorities or other public parties shall apply to the decision concerning the

liability to provide compensation for the legal costs of the opponent If one contracting authori-

tyentity has been responsible for the contracting procedure on behalf of the other contracting

authorities the obligation regarding compensation of legal costs may be placed on the con-

tracting authorityentity which acted on behalf of the other contracting authorities

Section 92

The effect of the appeal on concluding the contract

In case of a contract where the standstill period or the time limit referred to in section 81 must

be observed the contracting authorityentity may not conclude the contract if the matter has

been brought up for consideration by the Market Court

If the Market Court decides a case concerning enforcement or decides on the principal claim

before the standstill period or the time limit referred to in Section 81 has expired the contract-

ing authorityentity shall observe the standstill period or the time limit referred to in Section

81 until the end of the period notwithstanding the ruling of the Market Court

Section 93

Interim decisions of the Market Court

While the appeal is under consideration the Market Court may prohibit suspend or allow the

implementation of the decision concerning the contract award or order the contracting proce-

dure to be suspended otherwise as an interim measure for the duration of the proceedings in the Market Court

When deciding on the measure referred to in subsection 1 the Market Court shall take into

consideration that the harm caused by the measure to the opponent the rights of third par-

ties the security of the state or the public interest may not outweigh its benefits

However the decision prescribed in subsection 1 of this Section cannot be carried out in the case of a contract referred to in Section 68(2) of this Act

A legally trained member of the Market Court may alone issue a ruling as an interim measure

Section 94

Interim commitment of the contracting authorityentity

While the appeal is under consideration the contracting authorityentity may provide a written

undertaking to the Market Court stating that it will not enforce the decision concerning the contract for as long as the matter is pending in the Market Court

39

If the contracting authorityentity provides the Market Court with the undertaking referred to

in subsection 1 the Market Court will not issue without a specific reason a decision on the

obligation to interim prohibition on implementing the decision to award the contract

Section 95

Temporary organisation of a contract

If an appeal has been lodged against a contract before the Market Court the contracting au-

thorityentity may temporarily organise the contract by ordering it from a supplier who partici-

pated in the contracting procedure or from a previous supplier if the nature of the contract is

such that executing the contract cannot be postponed for the duration of the Market Court pro-ceedings

Temporary contract arrangements must not hinder the execution of the following items by means of a decision of the Market Court

1) the decision of the contracting authorityentity to cancel the contract in full or in part

2) prohibit the contracting authorityentity from applying any erroneous item included in the contract document or otherwise complying with an incorrect procedure or

3) require the contracting authorityentity to rectify its incorrect procedure

Section 96

Sanctions imposed by the Market Court

If during the contract procedure actions have been taken which are against this Act or the provisions based thereon or against European Union legislation the Market Court may

1) cancel the decision of the contracting authorityentity in full or in part

2) prohibit the contracting authorityentity from applying any erroneous item included in the contract document or otherwise complying with an incorrect procedure

3) require the contracting authorityentity to correct its erroneous procedure

4) order the contracting authorityentity to pay a compensatory fee to the party which would

have had a genuine chance to win the bidding competition had the procedure been correct

5) impose an ineffectiveness sanction on the contracting authorityentity

6) order the contracting authorityentity to pay an infringement fine to the state

7) reduce the contract term to end after a period of time specified by the Market Court has

passed

The provisions of Sections 97ndash100 shall apply to determining the sanctions mentioned in sub-

section 1 points 4ndash7 above When determining these sanctions the Market Court may consid-

er the contract to have been concluded on the basis of specific circumstances provided that

the contracting authorityentity has especially commenced the implementation of the contract

The ineffectiveness sanctions infringement fine and reduction of contract terms may only be

issued in contracts exceeding the EU thresholds referred to in Section 12 However an ineffec-tiveness sanction cannot be imposed in a service contract in accordance with Annex B

Only a compensatory fee can be imposed in a contract referred to in Section 68(2) of this Act

40

Section 97

Compensation

Provision for compensation may be made if the harm caused to the contracting authori-

tyentity rights of third parties state security and the public interest by the measure defined

in Section 96(1)(1ndash3) is considered to outweigh the benefits or if the petition has been initiat-

ed following the conclusion of the contract With respect to setting the amount of the compen-

satory fee account shall be taken of the nature of the infringement or omission by the con-

tracting authorityentity the value of the contract in question and the costs and damages in-

curred by the petitioner The Market Court may however decide not to prove for compensa-

tion if the contracting authorityentity has refrained from implementing the contract during the proceedings in the Market Court

Without a specific reason the amount of compensation shall not exceed 10 percent of the val-

ue of the contract

Section 98

Ineffectiveness

The Market Court may declare a contract ineffective if

1) the contracting authorityentity has made a direct award of contract without the basis re-ferred to in this Act and the procedures referred to in Section 81

2) the contracting authorityentity has concluded the contract although there is an obligation in the contract to observe a standstill period

3) the contracting authorityentity has concluded the contract contrary to Section 92 although

the procurement case has been submitted to the Market Court for a decision

In addition a requirement in the situation referred to in subsection 1 points 2 and 3 above is

that the contracting authorityentity has made another infringement contrary to this Act which has affected the chances of the appellant to win the contract

If the contracting authorityentity has concluded the contract in a competition based on the

framework agreement on the basis of Section 80 without observing the standstill period and if

a breach has been committed in the competition in respect of Section 27(2 or 3) such that this

has affected the chances of the appellant to win the contract the Market Court may declare the contract ineffective

The Market Court shall decide to which contractual obligations ineffectiveness shall apply Inef-

fectiveness shall apply only to unfulfilled contractual obligations

Section 99

Non-imposition of ineffectiveness

In the situations referred to in Section 98 above the Market Court may decide not to impose

ineffectiveness for compelling reasons related to the public interest or state security Economic

interests which are directly related to the contract may be deemed compelling only if ineffec-tiveness of the contract would exceptionally have inequitable consequences

The Market Court may not impose ineffectiveness if it would result in serious endangerment of

the implementation of a defence and security project essentially important with respect to

state security

Section 100

41

Infringement fines and reduction of the contract term

The Market Court may order a contracting authorityentity to pay the state an infringement

fine if

1) the Market Court has declared the contract ineffective

2) the contracting authorityentity has concluded the contract although there is an obligation in the contract to observe a standstill period

3) the contracting authorityentity has concluded the contract contrary to Section 92 although the procurement case has been submitted to the Market Court for a decision or

4) the Market Court has decided not to declare the contract ineffective for compelling reasons related to the public interest or state security in accordance with Section 99

In the situation referred to in subsection 1 point 4 above the Market Court may in addition to

or instead of imposing a sanction reduce the contract term so that it ends after a period of time specified by the Court

The Market Court may order a contracting authorityentity to pay the state an infringement

fine or reduce the contract term so that it ends after a period of time specified by the Court

this applies to service contracts referred to in Annex B of this Act the value of which exceeds

the EU threshold as defined in Section 12 if the contracting authorityentity

1) has made a direct award of contract without the basis referred to in this Act and the proce-dures referred to in Section 81 not having been complied with in the direct award

2) has concluded the contract although there is an obligation in the contract to observe the standstill period

3) has concluded the contract contrary to Section 92 although the procurement case has been submitted to the Market Court for a decision or

4) has concluded the contract in a competition based on a framework agreement on the basis

of Section 80 without observing the standstill period and if a breach has been committed in the

competition in respect of Section 27(2 or 3) such that this has affected the chances of the ap-pellant to win the contract

In addition a requirement in the situation referred to in subsection 3 points 2 and 3 above is

that the contracting authorityentity has made another infringement contrary to this Act which

has affected the chances of the appellant to win the contract

With respect to issuing a sanction the Market Court shall take into account the nature of the

mistake or omission by the contracting authorityentity and the value of the contract in ques-

tion The sanction shall not exceed 10 percent of the value of the contract

Section 101

Allocation of sanctions and cumulative effect

If one contracting authorityentity has been responsible for the contracting procedure on be-

half of the other contracting authorities the obligation to compensate for legal costs can be

placed on the contracting authorityentity that acted on behalf of the other contracting authori-

ties

With respect to the sanctions referred to in this Act the Market Court shall take into considera-

tion that the cumulative effect may not become unreasonable for the contracting authori-

tyentity or its contracting party

42

Section 102

Conditional fine

The Market Court may impose a conditional fine in order to underline the importance of com-

plying with the prohibitions or obligations referred to in this Act The provisions of the Act on

Conditional Fines (11131990) shall apply to the imposing of and sentencing to the payment of

conditional fines

If one contracting authorityentity has been responsible for the contracting procedure on be-

half of the other contracting authorities the obligation to compensate for costs can be placed

on the contracting authorityentity that acted on behalf of the other contracting authorities

Section 103

Notification of the Market Courts ruling

The ruling of the Market Court along with the instructions for appeal shall be verifiably notified under the provisions of the Administrative Judicial Procedure Act

With the consent of the appellant and the contracting authorityentity the Market Courts deci-

sion together with the instructions for appeal may be publicised using the electronic contact

information the aforementioned parties have provided to the Market Court

When electronic contact information is used the appellant and the contracting authorityentity

shall be deemed to have been notified of the decision and instructions for appeal on the date

on which the message concerning the matter is available in the recipientsrsquo reception equipment

so that the message can be handled The provisions of Section 77(1) shall apply to electronic

notification

Section 104

Prohibition to appeal

A case that is within the jurisdiction of the Market Court cannot be appealed against under the

provisions of the Local Government Act or the Administrative Judicial Procedure Act

A decision or ruling concerning a contract which has been excluded from the scope of applica-

tion of this Act on the basis of Section 6(2) and Sections 78 or 13 may not be appealed under

the Administrative Judicial Procedure Act or the Local Government Act The subcontractor may

not under the Administrative Judicial Procedure Act or the Local Government Act appeal the

decision or action taken by the contracting authorityentity concerning the subcontract

Section 105

Appeals against the decisions of the Market Court

Appeals against a ruling of the Market Court can be lodged in the Supreme Administrative Court in accordance with the Administrative Judicial Procedure Act

As referred to in Section 93(1) an appeal cannot be lodged against the ruling by the Market

Court in the Supreme Administrative Court A ruling by the Market Court does not prevent the

case from being reconsidered by the Market Court if the grounds for the previous ruling have

changed

If the Market Court has ruled that it will not grant the processing authorisation referred to in

Section 88(3) then an appeal against this ruling can only be lodged if the Supreme Adminis-

trative Court grants a leave to appeal

43

Section 106

Application of the Administrative Judicial Procedure Act

The Administrative Judicial Procedure Act shall apply to appeals unless otherwise provided by this Act

Section 107

Implementation of rulings

A ruling of the Market Court has to be observed notwithstanding any appeal unless the Su-

preme Administrative Court orders otherwise The ruling of the Market Court issuing the sanc-

tion referred to in Section 96(1)(4ndash7) may only be implemented on the basis of a final ruling

The implementation of a ruling concerning a sanction shall be supervised by the Legal Register

Centre The Legal Register Centre must be informed of any ruling by the Market Court and

Supreme Administrative Court to issue a sanction

Section 108

Compensation for damages

Those who cause damage to a candidate tenderer or supplier shall be liable to pay compensa-

tion for the damage they have caused while acting in breach of this Act or any regulations based thereon or the European Union law

However when the claim for damages refers to costs incurred as a result of the tendering pro-

cedure the candidate or tenderer is entitled to compensation if it can provide proof of the in-

correct procedure as defined in subsection 1 and that had the procedure been correct it would have had a genuine chance to win the contract

In respect of the cases defined in subsection 1 and 2 a Court of first instance shall be the

competent court in accordance with Chapter 10 of the Code of Judicial Procedure

Chapter 16

Further provisions

Section 109

Disclosure of information

Notwithstanding the provisions concerning confidentiality provided for in the Act on the Open-

ness of Government Activities or in any other act the contracting authorityentity shall supply

statistics and other information concerning the different stages of the contract and performed

contracts to the Finnish authorities and European Union bodies to monitor contracts and ex-

change information on the scale and to the time limit required by European Union law Pursu-

ant to this Act the Ministry of Economic Affairs and Employment has the right to forward in-

formation it has received to the European Union authorities notwithstanding the regulations on confidentiality

The contracting authorityentity shall draw up a written report on each contract and framework

agreement which includes essential information on the contract contract procedure and the

candidates and tenderers who participated as well as on the decisions made in connection with

44

the contract The report and its main content shall be forwarded on request to the European

Commission A separate report is not required if corresponding information can be found in the

contract decision or other documents

To document the course of the realised contract procedure the contracting authorityentity

shall implement necessary measures in an electronic format

More specific rules are laid down in a Government decree on the obligation to provide statistics

and the responsibility of the contracting authorityentity to draw up reports on contract proce-

dures and contract decisions as referred to in subsection 1 which are to be forwarded to the

European Union bodies

Section 110

Entry into force and transitional provisions

This Act enters into force on 1 January 2012

If a contract procedure is started before the entry into force of this Act the provisions that

were in force at the time when this Act entered into force shall be applied The contract proce-

dure shall be deemed to have commenced when the contract notice was published A contract

which does not require the publication of the contract notice shall be deemed to have com-

menced when the invitation to tender or a meeting is sent or negotiations with suppliers begin

Measures necessary for the implementation of this Act may be undertaken before the Actrsquos

entry into force

45

ANNEX A

Primary services

Group No

Matter CPV Reference No

1 Maintenance and repair services 50000000-5 50100000-6-50884000-4 (except 50310000-1-50324200-4 and 50116510-9 50190000-3 50229000-6 50243000-0) and 51000000-9-51900000-1

2 Services related to international military assistance

75211300-1

3 Defence services military defence services and civil defence services

75220000-4 75221000-1 75222000-8

4 Investigation and security services 79700000-1-79720000-7

5 Land transport services 60000000-8 60100000-9-60183000-4 (except 60160000-7 60161000-4) and 64120000-3-64121200-2

6 Air transport services for passengers and freight except transport of mail

60400000-2 60410000-5-60424120-3 (except 60411000-2 60421000-5) 60440000-4-60445000-9 and 60500000-3

7 Transport of mail by land and by air 60160000-7 60161000-4 60411000-2 60421000-5

8 Railway transport services 60200000-0-60220000-6

9 Sea transport services 60600000-4-60653000-0 and 63727000-1-63727200-3

10 Support and auxiliary transport services 63100000-0-63111000-0 63120000-6-63121100-4 63122000-0 63512000-1 and 63520000-0-6370000-6

11 Telecommunications services 64200000-8-64228200-2 72318000-7 and 72700000-7-72720000-3

12 Financial services insurance services 66500000-5-66720000-3

13 Data-processing and related services 50310000-1-50324200-4 72000000-5-72920000-5 (except 72318000-7 and 72700000-7-72720000-3) 79342410-4 9342410-4

14 Research and development services(sup1) and evaluation tests

73000000-2-73436000-7

15 Accounting auditing and bookkeeping services

79210000-9-79212500-8

16 Management consulting(sup2) and related services

73200000-4-73220000-0 79400000-8-79421200-3 and 79342000-3 79342100-4 79342300-6 79342320-2 79342321-9 79910000-6 79991000-7 98362000-8

17 Architectural services engineering services and integrated engineering services urban planning and landscape architectural services related scientific and technical consulting services technical testing and analysis services

71000000-8-71900000-7(except 71550000-8) and 79994000-8

18 Building cleaning services and building and property management services

70300000-4-70340000-0 and 90900000-6-90924000-3

19 Sewage and refuse disposal services 90400000-1 to 90743200-9 (except 90712200-3)

46

sanitation and similar services 90910000-9-90920000-2 and 50190000-3 50229000-6 50243000-0

20 Training and simulation services in the fields of defence and security

80330000-6 80600000-0 80610000-3 80620000-6 80630000-9 80640000-2 80650000-5 80660000-8

(sup1) Except the research and development services referred to in Section 13(2)(5) (sup2) Except arbitration and conciliation services ANNEX B Secondary services

Group No

Matter CPV Reference No

21 Hotel and restaurant services 55100000-1-55524000-9 and 98340000-8-98341100-6

22 Support and auxiliary transport services 63000000-9-63734000-3 (except 63711200-8 63712700-0 63712710-3) 6372700-1-63727200-3 and 98361000-1

23 Legal services 79100000-5-79140000-7

24 Employment and personnel recruitment services(sup1)

79600000-0-79635000-4 (except 79611000-0 79632000-3 79633000-0) and 98500000-8-98514000-9

25 Health and social services 79611000-085000000-9 and -85323000-9 (except 85321000-5 and 85322000-2)

26 Other services

(sup1) Except employment contracts

47

ANNEX C NACEsup1ordm

Main category F CONSTRUCTION CPV code

2-digit level

3-digit level

4-digit level

Description Comments

45 Construction This two-digit level includes the following construction of new buildings and works reconstruction and common repairs

45000000

451 Site preparation

45100000

4511 Demolition and wreck-ing of buildings earth moving

This four-digit level includes the following - demolition of buildings and other structures - clearing of building sites and earth moving site excavation landfill and levelling trench dig-ging quarrying blasting etc - site preparation for mining

- overburden removal and other development and prepa-ration of mines and mining sites

This four-digit level also includes - building site underdrainage - drainage of agricultural or forestry land

45110000

4512 Test drilling This four-digit level includes the following - test drilling test boring and sampling for construction geophysical geological or similar purposes This four-digit level excludes the following - drilling of oil or gas wells comp 1120 - water well drilling 4525

45120000

sup1deg Council regulation (EEC) No 303790 (Official Journal of the European Union 293 24 October 1990 p 1) on the statistical classification of economic activities in the European Community issued on 9 October 1990 regulation as amended by Commission Regulation (EEC) No 76193 (Official Journal of the European Union L 83 3 April 1993 p 1) If there are differences of opinion between CPV and NACE NACE nomenclature shall apply

48

- shaft sinking comp 4525 - oil and gas field exploration geophysical geological and seismic surveying comp 7420

452 Building complete constructions or parts thereof

45200000

4521 Building work This four-digit level includes the following - Construction of all types of buildings - civil engineering and hydraulic engineering works - building of bridges including those for elevated highways metro tunnels - construction of long-distance pipelines communication cables and long-distance networks for power lines - construction of long-distance pipelines telecommunication ca-bles and municipal network power lines related installation work - on-site assembly and erection of pre-fabricated constructions This four-digit level excludes the following - services related to oil and gas extraction comp 1120 - erection of complete prefabricat-ed constructions from self-manufactured parts not of con-crete comp 20 26 28 - construction work other than buildings for stadiums swimming pools gymnasiums tennis courts golf courses and other sports installations comp 4523 building installation comp 453 - building completion comp 454 - architectural and engineering services comp 7420 - project management for construction comp 7420

45210000 Except 45213316 45220000 45231000 45232000

4522 Erection and covering of roofs

This four-digit level includes the following - erection of roofs - roof covering - waterproofing

45261000

49

4523 Construction of highways streets airports and sports equipment

This four-digit level includes the following - construction of highways streets other vehicular and pedestrian ways - construction of railways - construction of airfield runways - construction work other than build-ings for stadiums swimming pools gymnasiums tennis courts golf courses and other sports installations - painting of markings on road surfaces and car parks This four-digit level excludes the following - preliminary earth moving comp 4511

45212212 and DA03 45230000 except 45231000 45232000 45234115

4524 Construction of water projects

This four-digit level includes the following building works - construction of waterways harbour and river works marinas locks etc - construction of dams and breakwaters - dredging - subsurface work

45240000

4525 Other construction work

This four-digit level includes the following - construction activities specialising in one aspect common to different kinds of structures requiring specialised skill or equipment - construction of foundations including pile driving - water well drilling and construction shaft sinking - erection of non-self-manufactured steel frame elements - steel bending - bricklaying and stone setting - erecting and dismantling of scaffolds and work platforms including rental of scaffolds and work platforms - erection of chimneys and industrial ovens This four-digit level excludes the following - rental of scaffolds without erecting and dismantling comp 7132

45250000 45262000

453 Building installation 45300000

4531 Installation of electri-cal wiring and fittings

This four-digit level includes the installation in buildings or other

45213316 45310000

50

construction projects of - electrical wiring and fittings - telecommunications systems - electrical heating systems - residential antennas - fire alarms - burglar alarm systems - lifts and escalators - lightning conductors etc

Except 45316000

4532 Insulation work This four-digit level includes the following - installation in buildings or other construction projects of thermal sound or vibration insulation This four-digit level excludes the following - waterproofing comp 4522

45320000

4533 Plumbing This four-digit level includes the installation in buildings or other construction projects of the following - plumbing and sanitary equipment and fittings - gas fittings - heating ventilation refrigeration or air-conditioning equipment and ducts - sprinkler systems This four-digit level excludes the following - installation of electrical heating systems comp 4531

45330000

4534 Other installation work

This four-digit level includes the fol-lowing - installation or other construction of illumination and signalling systems for roads railways airports and harbours - installation in buildings or other construction projects of fittings and fixtures

45234115 45316000 45340000

454 Building completion 45400000

4541 Plastering This four-digit level includes the following - application in building or other construction projects of interior and exterior plaster or stucco and other similar lathing materials

45410000

4542 Joinery installation This four-digit level includes the following - installation of non-self-manufactured doors windows door

45420000

51

and window frames fitted kitchens staircases and shop fittings made of wood or other materials - completion of interiors such as ceilings wooden wall coverings wall paneling installation of movable partitions etc This four-digit level excludes the following - laying of parquet and other wooden floor coverings comp 4543

52

4543 Floor covering and wall upholstery

This four-digit level includes the following - covering or tiling of buildings or other structures using - ceramic concrete or stone wall or floor tiles or stones - parquet or other wooden floor covering - wall-to-wall carpeting or linoleum also rubber or plastic floor covering - wall or floor covering made of mosaic marble granite or slate - wallpaper

45430000

4544 Painting and glazing This four-digit level includes the following - interior and exterior painting of buildings - exterior painting of other structures - installation of mirrors glass etc This four-digit level excludes the following - installation of windows comp 4542

45440000

4545 Other building completion

This four-digit level includes the following - construction of private swimming pools - cleaning the exterior surfaces of buildings using steam sandblasting or other similar method - other building completion work not classified elsewhere This four-digit level excludes the following - cleaning of buildings and other structures comp 7470

45212212 and DA03 45450000

455 Rental of construction or dismantling equip-ment with operators

45500000

4550 Rental of construction or dismantling equip-ment with operators

This four-digit level excludes the following - rental of construction or dismantling machines and equipment without operators comp 7132

45500000

26

A candidate or tenderer may rely on the capacities of other entities regardless of the legal na-

ture of the links it has with them to carry out the contract A group may rely on the abilities of

participants in the group or in other entities in order to perform the contract The candidate or

tenderer or a group thereof shall furnish the contracting authorityentity with proof that the

requirements relating to economic and financial standing technical capacity and professional

ability and other requirements are satisfied This proof may include contracts between compa-

nies or other binding documents demonstrating that the capacities to satisfy the requirements are accessible by the candidates or tenderers

Section 57

Selecting the tender

The contract awarded shall be either the economically most advantageous tender from the

point of view of the contracting authorityentity in accordance with the comparison criteria

linked to the object of the contract or the lowest in price When the award is made to the eco-

nomically most advantageous tender the criteria may include for example quality price

technical merit aesthetic and functional characteristics environmentally friendly characteris-

tics running costs costs associated with a long life cycle cost effectiveness after-sales ser-

vice and technical assistance delivery date delivery period and period of completion security of supply and interoperability and functional characteristics

The contracting authorityentity shall specify in the contract notice or the invitation to tender

documentation the comparison criteria and the relative weighting which it gives to each of the

criteria chosen to determine the economically most advantageous tender In the competitive

dialogue procedure the equivalent information shall be specified in the contract notice or the

project description The weighting may also be specified by indicating a reasonable range If it

is not reasonably possible to specify the relative weighting of the comparison criteria they

shall be specified in the order of importance

Section 58

Abnormally low tenders

The contracting authorityentity may reject tenders that are abnormally low in relation to the

quality and scope of the contract Before it may reject a tender the contracting authori-

tyentity shall request in writing a written report from the tenderer on the constituent ele-ments of the tender

The request referred to in subsection 1 may relate in particular to the economic and technical

solutions chosen for the manufacture of the goods supply of the service or execution of the

work exceptionally favourable conditions for the execution of the contract the originality of

the proposed solution employment protection at the place where the contract is executed and

compliance with the provisions relating to working conditions or the possibility of the tenderer

receiving state aid The contracting authorityentity shall verify the constituent elements of the tender taking into account the evidence supplied

The contracting authorityentity may reject a tender which is abnormally low in price because

the tenderer has obtained state aid illegally The tender can be rejected only after a sufficient

time limit has been fixed for the tenderer to prove that the state aid in question was granted

legally If the contracting authorityentity rejects the tender because of illegal state aid it shall report the matter to the European Commission

Section 59

Taking account of a subsidy awarded by the contracting authorityentity in the com-parison of tenders

If the tenderer is an entity belonging to the contracting authorityentitys organisation or if the

contracting authorityentity has granted or will grant the tenderer a financial subsidy which will

affect the price of the tender in the comparison of the tenders the contracting authorityentity

27

shall take into account the factors which will genuinely affect the price of the tender paid by

the contracting authorityentity such as the financial subsidy in question

Chapter 9 Subcontract agreements

Section 60

Subcontracts with related companies

The contracting authorityentity may request the tenderer to state in its tender which part of

the contract it plans to award as a subcontract to related companies and to list these compa-

nies The contracting authorityentity may also request tenderers submitting tenders as a

group as defined in Section 56 to indicate in their tender which part of the contract they plan

to award as a subcontract to their related companies and to list these companies If the rela-

tionships between the companies change during the procurement procedure the tenderer shall update the information included in its tender

A related company means a company which is under the direct or indirect control of the ten-

derer or which has direct or indirect control of the tenderer or which jointly with the tenderer

is under the control of another company on the basis of ownership financial contribution or the

regulations under which the company operates A company is considered to have control of

another company when it owns the majority of that companys unrestricted shareholder equity

controls the majority of the companys shareholders voting rights or may appoint half of the

members of the companys administrative managerial or supervisory body

The provisions of Sections 62-66 of this Act concerning subcontracting agreements are not

applicable to subcontracting agreements which the tenderer has entered into with a related

company or when the tender has been submitted by a group as defined in Section 56 to a

company belonging to the same group or a company which is a related company of a company

belonging to the group

Section 61

Selecting a subcontractor

The tenderer may select its subcontractors in all subcontracting agreements unless otherwise prescribed in Sections 62ndash66 of this Act

Section 62

Requirements concerning subcontracting agreements

The contracting authorityentity shall define the requirements for a subcontracting agreement

in the contract notice and further specify them in the invitation to tender In defining the re-

quirements for subcontracting agreements the principles of proportionality and non-discrimination must be complied with

The contracting authorityentity may require that the tenderer state in the tender which part

or parts of the contract it plans to subcontract to third parties the content of the subcontract-ing agreement and the chosen subcontractors shall also be stated

In addition to the provisions of subsection 2 the contracting authorityentity may require that

the tenderer selected as a contracting party shall

1) in accordance with the procedures laid down in Sections 64ndash66 of this Act invite bids on

part or all of the subcontracts included in the tender and stated in the notice in accordance with subsection 2 or

2) award the minimum amount of the contract value as defined by the contracting authori-

tyentity to third parties as subcontracts and invite bids on these subcontracts in accordance

with the procedures laid down in Sections 64ndash66 of this Act The contracting authorityentity

shall in that case define as percentages the minimum and maximum amount the tenderer shall

award to third parties as subcontracts and require that the tenderer state in its tender which

28

part or parts of the contract it plans to award to third parties as subcontracts in order to fulfil

the requirement of the contracting authorityentity The maximum amount defined by the con-tracting authorityentity shall not exceed 30 percent of the value of the contract or

3) invite bids on a part or parts of the subcontracts which it plans to award to third parties in

addition to the subcontracts mentioned in point 2 above In that case the contracting authori-

tyentity shall require that the tenderer specify in its tender those parts of the contract which it

plans to award as subcontracts to third parties in addition to the subcontracts mentioned in point 2 above

In addition to the provisions of subsections 2 and 3 the contracting authorityentity may re-

quire that the tenderer report any changes occurring at the subcontractor level during the im-

plementation of the contract

The contracting authorityentity shall set the maximum and minimum amount as defined in

subsection 3 point 2 having regard to the object and value of the contract and the character of the industry sector in question the competitive situation and technical capacity

The tenderer has the right to award more subcontracts to third parties than required by the contracting authorityentity in accordance with this Section

Section 63

Rejecting a subcontractor

The contracting authorityentity may specify requirements concerning the subcontractors fi-

nancial and economic situation technical capacity and professional competence information

security security of supply or quality These as well as other requirements concerning the

suitability of the subcontractor shall be stated in the contract notice These requirements shall

be equitable and non-discriminatory and conform to the requirements set in the invitation to tender concerning the suitability of the candidate or tenderer

The contracting authorityentity may decide to reject a subcontractor selected by the tenderer

during the contract procedure or the implementation of the contract if the subcontractor does

not meet the requirements set in the contract notice concerning the suitability of the subcon-

tractor or the exclusion criterion laid down in Section 47 or Section 48 applies to the subcon-

tractor The contracting authorityentity shall justify the rejection in writing to the tenderer

Section 64

Implementation of subcontracts

A tenderer selected as a contracting party shall act openly and treat any and all subcontractors

equally and in a non-discriminatory manner

A tenderer selected as a contracting party shall provide for the publication a subcontract notice

concerning those subcontracts to which the bidding obligation laid down in Section 62(3) ap-

plies and whose estimated value without value added tax exceeds the EU thresholds men-

tioned in Section 12 The notice obligation shall not apply to a subcontract which fulfills the

requirement set for a direct contract award mentioned in Sections 22ndash23 The provisions of

Sections 14ndash16 shall apply to the calculation of the estimated value of subcontracts

The tenderer selected as the contracting party shall specify in the subcontract notice the crite-

ria which the tenderer will apply in assessing the suitability of the subcontractors and in select-

ing them These criteria shall be equitable and non-discriminatory and conform to the criteria

that the contracting authorityentity applies in assessing the suitability of the tenderers The

requirements shall be related to the object of the subcontract and be proportional to the scope

of the subcontract

A tenderer selected as a contracting party may publish a subcontract notice also concerning

those subcontracts which meet the criteria for the subcontracts referred to in Sections 22ndash23

29

Section 65

Exemption from an obligation related to subcontracting

A tenderer selected as a contracting party may not be required to enter into a subcontract if it

indicates in a manner satisfactory to the contracting authorityentity that none of the subcon-

tractors that participated in the competition or none of their tenders fulfil the requirements

set in the subcontract notice and therefore the tenderer selected as a contracting party could

not fulfil the contract requirements

Section 66

Framework agreements

The provisions of Section 62 shall not apply to subcontracts awarded by the tenderer selected

as a contracting party if the framework agreement was put out to tender in accordance with

the provisions of Section 64

Subcontracts based on a framework agreement shall be awarded in accordance with the condi-

tions confirmed in the framework agreement and concluded between the original participants

to the framework agreement Conditions analogous to those of the framework agreement shall be complied with in subcontracting agreements

The framework agreement may not be used in such a way as to distort restrict or prevent

competition

The term of the framework agreement may not exceed seven years In exceptional cases the

framework agreement may be longer in duration when duly justified by the expected life cycle

of the supplies equipment and systems delivered and the technical problems that might re-

sult from the change of supplier

Section 67

The responsibility of the tenderer for carrying out the contract

The requirements set by the contracting authorityentity on the basis of this Chapter and the

notices issued by the tenderers based on them do not limit the responsibility of the tenderer

selected as a contracting party to carry out the contract PART III

National procedures

Chapter 10 Tendering procedures for contracts below the EU threshold for second-

ary service contracts referred to in Annex B and for certain other contracts

Section 68

Contract award procedures

The contract award procedures specified in this Chapter may be used for service contracts

public works contracts and the service contracts referred to in Annex A which are below the EU

threshold referred to in Section 12(1) but above the national threshold referred to in Section

13(1) and for secondary service contracts referred to in Annex B which are above the national

threshold referred to in Section 13(1)

The procedures laid down in this Chapter may also be used for defence contracts referred to in

Section 5 when the value of the defence contracts exceed the national threshold as referred to

in Section 13 provided that the criteria set in Article 346(1)(b) of TFEU are fulfilled

30

Section 69

General rules of procedure

The contracting authorityentity shall aim to take advantage of the prevailing competitive con-

ditions and award the contract primarily through competitive bidding A sufficient number of

tenders shall be requested in terms of the scope and subject matter of the contract to ensure

competition

A public notice shall be issued however the publication obligation does not apply in the case

of contracts that fulfil the criteria set in Article 346(1)(b) of TFEU

The contracting authorityentity may request a tender directly from one supplier if competitive

bidding cannot be carried out for reasons justified on the basis of national defence state secu-rity or security of supply

The contracting authorityentity may also request a tender directly from one supplier if

1) no tenders or no suitable tenders were received in the competitive bidding carried out

previously a further requirement is that the conditions of the original invitation to ten-

der are not fundamentally changed

2) for technical reasons or for reasons connected with the protection of exclusive rights the contract may be awarded only to a particular supplier

3) for reasons of urgency brought about by a crisis it is not possible to carry out competi-tive bidding

4) execution of the contract is absolutely necessary and competitive bidding cannot be

carried out for reasons of extreme urgency brought about by events unforeseeable by

and independent of the contracting authorityentity

5) the product to be acquired are manufactured purely for scientific or research purposes

and it is not a matter of establishing commercial viability of the products or to recover research and development costs

6) the object of the contract is a research and development service that has not been ex-cluded from the scope of this Act on the basis of Section 8

7) the contract is necessary in order to determine whether the final result of the research

and development service is suitable to be used as intended by the contracting authori-tyentity

8) the object of the contract consists of supplies quoted and purchased on a commodity market

9) the supplies are purchased on particularly advantageous terms from either a supplier

winding up its business activities or from the receivers of a bankruptcy or liquidators in

insolvency proceedings an arrangement with creditors or a similar procedure

10) the object of the contract is a second-hand product

11) the object of the contract is based on a supplementary contract right incorporated into

the contract

12) the object of the contract is additional deliveries by the original supplier which are in-

tended either as a partial replacement of existing supplies or installations or as the ex-

tension of existing supplies or installations and a change of supplier would result in in-

compatibility or disproportionate technical difficulties in operation and maintenance

13) the object of the contract is additional works or services not included in the project ini-

tially but which have through unforeseen circumstances become necessary for the per-

formance of the works or services as originally described

31

Section 70

Negotiations with tenderers and specifying the tender and the invitation to tender

The contracting authorityentity may discuss all aspects of the contract with the tenderers dur-

ing the negotiation provided that the negotiations do not result in changing constituent ele-

ments in the invitation to tender in a discriminating manner or in a manner which distorts

competition

The purpose of the negotiations shall be to select the best tender in accordance with Section

73(2) or to determine one or more alternative solutions for contract implementation before

sending the final invitation to tender The dialogue may take place in successive stages in or-

der to reduce the number of tenders or solutions to be discussed during the dialogue by apply-

ing the comparison criteria indicated in the invitation to tender or project description

In competitive bidding the requirement for negotiations shall be that the negotiations and the

criteria to be complied with during the negotiations have been stated in the invitation to tender

or the project description

The contracting authorityentity shall ensure equal treatment of all candidates and tenderers

during the negotiations and shall not provide information in a manner that may compromise

the equal treatment of the participants in competitive bidding

Section 71

Invitation to tender

The invitation to tender shall be submitted in writing and drawn up to be sufficiently clear in

order to enable submission of commensurate and mutually comparable tenders The invitation

to tender shall contain all information that is particularly important in terms of the contracting

procedure and submitting the tender

The invitation to tender shall include the award criterion and where the criterion for the award is that of the economically most advantageous tender the comparison criteria and the ranking thereof The invitation to tender shall indicate a reasonable time allotted for the tenderers to submit a tender taking into consideration the scope and subject matter of the contract

The contracting authorityentity may charge a reasonable fee for the invitation-to-tender doc-

uments to recover the costs arising from the exceptionally extensive scope of the documenta-

tion the materials related thereto or other similar factors

Section 72

Drawing up the invitation to tender and submitting the tender

The invitation to tender and the tenders based thereon shall be drawn up in writing They may be executed orally only in exceptional circumstances if the written procedure is justifiably not appropriate If the invitation to tender or the tenders are not drawn up in writing a record shall be kept of the negotiations held with the tenderers the record shall indicate the infor-mation impacting the course of the procedure and the position of the tenderers

Section 73

Selection of a tender and a tenderer rejecting a tender

The contracting authorityentity may exclude from the competitive bidding any supplier which

taking into consideration the scope and object of the contract and other criteria does not pos-

sess the qualifications to carry out the contract The contracting authorityentity may exclude

32

from the competitive bidding any tender submitted by a tenderer who does not possess the

qualifications to carry out the contract when taking into consideration the scope and object of

the contract and other criteria

The contracting authorityentity shall award the contract to the tenderer whose tender has the

lowest price or complies with the comparison criteria set in the invitation to tender and is eco-

nomically the most advantageous

The contracting authorityentity may reject a tender which does not fulfil the essential condi-

tions set in the invitation to tender or has an abnormally low price in terms of the subject mat-

ter and scope of the contract Before it may reject a tender the contracting authorityentity

shall request in writing details of the constituent elements of a tender that is abnormally low in

price

PART IV

General provisions on decisions concerning contract awards conclusion of contracts

procurement rectification public access to the contract documents and further provi-sions

Chapter 11

Decisions concerning the award of contracts and notification thereof

Section 74

Decision concerning the award

The contracting authorityentity shall provide in writing the decisions affecting the position of

the candidates and tenderers and the results of the tendering procedure including the grounds for the outcome of the procedure

The decision or the related documentation shall state the factors that fundamentally affected

the outcome including the grounds for rejecting the candidate tenderer or tender and the

grounds on which the accepted contracts were compared As regards a decision concerning

asking for bids for a contract based on a framework arrangement stating the facts showing

that the selection and award criteria have been applied as required under Section 27 shall

suffice If the standstill period referred to in Section 79 applies to the contract the decision or

the related documents shall also state the period of time after which the contract may be awarded

The contracting authorityentity is not required to make a decision referred to in this Section

concerning a contract for the additional supplies referred to in Section 23 or Section 69(4)(12)

and additional service or contract referred to in (13) or the temporary arrangements for a con-tract referred to in Section 95

In contracts based on framework agreements the contracting authorityentity is not required to make the decision referred to in this Section if

1) the contract is awarded in accordance with the conditions laid down in the framework

agreement without asking for bids or

2) the competitive bidding is based on a framework agreement when the value of the contract

does not exceed the EU threshold

33

Section 75

Suspending the contract award procedure

The contract award procedure can be suspended only for verifiable and justifiable reason

The provisions of Section 74 concerning contract ruling shall apply to the suspension of the

contract award procedure

Section 76

Appeal instructions and instructions for request for rectification

Instructions for appeal shall accompany the decisions made by the contracting authori-

tyentity explaining how to refer a case to the Market Court for consideration contact infor-

mation of the contracting authorityentity for the notice referred to in Section 90 and instruc-

tions for seeking rectification (petition instructions) explaining how the candidate or tenderer can have the case submitted for reconsideration through procurement rectification

With regard to the issuing and amending appeal and petition instructions the provisions of

Chapter 3 of the Administrative Judicial Procedure Act (5861996) shall apply in terms of ap-

peals and the provisions of Chapter 7 of the Administrative Procedure Act (4342003) shall

apply in terms of petition instructions

Section 77

Notification of the decision concerning the contract award

The decision of the contracting authorityentity including the grounds for the decision and the

appeal and petition instructions shall be submitted in writing to the parties concerned The de-

cision including the aforementioned documents shall be submitted using the electronic con-

tact information which the candidate or tenderer has given to the contracting authorityentity

When using the electronic contact information the candidate and tenderer shall be considered

to have received notice of the decision and the accompanying documents on the date on

which the electronic message containing the aforementioned documents is available in the re-

cipients reception equipment such that the message can be handled Such a point in time shall

mean the date on which the message was sent unless a reliable explanation concerning the

malfunction of telecommunications links or another analogous reason because of which the

electronic message reached the recipient later When electronic notification is used the con-

tracting authorityentity shall include in the message a separate note concerning the date

when the message was sent

The decision including the grounds for it and the appeal and petition instructions may also be

sent via regular mail under the Administrative Procedure Act Candidates and tenderers shall

be considered to have received notification of the decision and the accompanying documents

on the seventh day from the date on which they were sent unless the candidate or tenderer

proves that the notification occurred at a later date

Notification on the decision of the contracting authorityentity shall be issued without undue

delay at the latest 15 days from the date on which the contracting authorityentity receives a written request concerning notification on the decision that was made

34

Chapter 12

Public contract

Section 78

Concluding a public contract

Having made the decision to award a public contract the contracting authorityentity shall

conclude the contract The contract is concluded upon signing a written agreement

Section 79

Standstill period

In the case of a contract above the EU threshold referred to Section 12 above the contract can

be concluded at the earliest 21 days from the date when the candidate or tenderer received or is considered to have received the decision and instructions for appeal (standstill period)

A standstill period shall not be applied in direct contract awards

The provisions of Section 92 shall apply to the effect of an appeal on concluding a contract

Section 80

Exceptions to the compliance with the standstill period

The standstill period need not be upheld if

1) the contract concerns a procurement carried out on the basis of the framework agreement in accordance with Section 27

2) the contract is awarded to the tenderer who submitted the only acceptable tender and no

other tenderers or candidates remain in the competitive bidding whose position would be af-

fected by the selection of a co-contractor

3) the contract concerns a procurement referred to in Section 68(2)

Section 81

Notification of direct awards and conclusion of public contracts

In direct awards exceeding the EU threshold the contracting authorityentity may after hav-

ing made the award decision send a notice for publication concerning the direct award of con-

tract before concluding the contract In that case the contract can be concluded at the earli-est 14 days after the publication of the notice in the Official Journal of the European Union

Chapter 13

Procurement rectification

Section 82

Rectification of a procurement

The contracting authorityentity may remove an incorrect decision or annul an award decision

made during the contracting procedure concerning the legal status of the candidates or ten-

35

derers and make a new decision (procurement rectification) if the award decision or other deci-

sion reached during the contracting procedure is based on an error that occurred in the appli-cation of the law

Amending an award decision or other decision does not require the consent of the party con-

cerned However an award decision or other decision cannot be amended through procure-

ment rectification if the contract has been concluded

Section 83

Initiation of procurement rectification

The contracting authorityentity may take up a procurement rectification on its own initiative

or in response to a demand of the party in question The contracting authorityentity shall noti-fy the concerned parties immediately of the initiation of a procurement rectification

A subcontractor does not have the status of a concerned party referred to in subsection 1 of this section in terms of the matter concerning the contract

The concerned party shall present the demand within 14 days after receipt of the notification

of the award decision or other decision made by the contracting authorityentity during the

contracting procedure The contracting authorityentity itself may amend the award decision or

other decision no later than 60 days after the date the decision concerning the procurement rectification is made

Appealing the case to the Market Court does not prevent a procurement rectification or its pro-

cessing A procurement rectification may also apply to a decision of the contracting authori-

tyentity that has become legally binding if the case has not been submitted to the Market

Court for ruling

Section 84

Effect of the processing of procurement rectification on the proceedings in the Mar-ket Court

The initiation and processing of a procurement rectification do not affect the time limit within

which the concerned party has the right pursuant to this Act to submit an appeal against the

decision to the Market Court

If the award decision or other decision that was reached during the contract award procedure

is to be amended and has been appealed against before the Market Court the Market Court

shall be notified of the processing of the case through procurement rectification and informed

of the decision reached In processing a procurement rectification the contracting authori-

tyentity may prohibit the enforcement of the award decision or other decision or order it to be

suspended The Market Court shall be notified of a prohibition or suspension of enforcement if an appeal has been lodged against the decision in the Market Court

If the contracting authorityentity amends its award decision or other decision by means of a

procurement rectification such that as a result the appellant to the Market Court no longer has

the need for judicial relief or the need for a justified decision the Market Court may decline to

process such a case without giving a ruling on the principal claim

Section 85

The application of procurement rectification to other contracts

A procurement rectification can also be applied to amend an award decision or other decision

made by the contracting authorityentity during the contracting procedure to which this Act

36

shall not apply pursuant to Section 6(2) and Sections 7 8 or 13 A decision made on account

of such a contract rectification may not be appealed against in the Market Court or under the Administrative Judicial Procedure Act or Local Government (Act 3651995)

Chapter 14

Public access to the contract documents

Section 86

Application of the provisions concerning public access to the contract documents

The Act on the Openness of Government Activities (6211999) shall apply to public access to

the documents of the contracting authorityentity and the fees charged for the documents if

the contracting authorityentity is the authority referred to in Section 4 of the aforementioned

Act or if it is obliged to comply with that Act on the basis of a provision contained elsewhere in the Act

In terms of the right of parties other than the participants in the competitive bidding conducted

by the contracting authorityentity referred to in subsection 1 to have access to the docu-

ments drawn up and received for processing of the tender and the confidentiality obligation of

those employed by the contracting authorityentity the provisions of the Act on the Openness

of Government Activities shall apply to the right of concerned parties to have access to the

document to how public access to the document is determined and to the processing and resolving of the matter concerning access to information

The decision of the contracting authorityentity which has resolved the matter concerning ac-

cess to information can be appealed in accordance with the provisions of Section 33 of the Act

on the Openness of Government Activities The Supreme Administrative Court in whose judicial

district the contracting authorityentity is located is the competent Supreme Administrative

Court for considering the appeal submitted on the basis of a decision made by a party other

than the contracting authorityentity acting as an authority

Chapter 15

Appealing and the implications thereof

Section 87

Parties entitled to appeal

A concerned party may appeal the matter to the Market Court by issuing a complaint A sub-

contractor does not have the position of an interested party referred to in subsection 1 of this Section in terms of the matter concerning the contract

In matters concerning control procedures of the European Union the Ministry of Economic Af-

fairs and Employment may also refer the matter to the Market Court for consideration

Section 88

Object of the appeal

An appeal may be lodged before the Market Court against an award decision of the contracting

authorityentity referred to in this Act or other decision reached by the contracting authori-

tyentity during the contracting procedure which affects the status of the candidate or the ten-derer

37

An appeal may not be lodged before the Market Court against an award decision or other deci-

sion of the contracting authorityentity which concerns only the preparation of the contracting

procedure An appeal may not be lodged against a decision or other measure taken by the

supplier selected as a contracting party concerning a subcontracting agreement or an award

decision or determination made by the contracting authorityentity during the implementation of the contract

A contract based on a framework agreement referred to in Section 27 above and a contract

referred to in Section 68(2) may not be appealed unless a processing authorisation is issued by the Market Court The authorisation shall be issued if

1) the processing of the case is important in terms of applying the Act in other similar matters

or

2) there is a cogent reason for it related to the procedures of the contracting authorityentity

Section 89

Time period for appeal

Unless otherwise prescribed in this Section an appeal must be lodged in writing within 14 days

from the date when the candidate or tenderer received the notice concerning the contract with the instructions for appeal

If the contracting authorityentity has concluded a public contract after the contract decision

was issued on the basis of Section 80 point 1 without complying with the standstill period

the appeal shall be lodged within 30 days from the date when the tenderer has received notice

of the decision with the instructions for appeal

An appeal before the Market Court shall be lodged within six months of the date of the contract

decision provided that the candidate or tenderer has received notice of the contract decision

and the contract decision or appeal instructions were materially deficient or the appeal instruc-tions have been missing altogether

If the contracting authorityentity has with regard to a contract above the EU threshold re-

ferred to in Section 12 above delivered a notice regarding a direct award of contract for publi-

cation in the Official journal of the European Union the complaint must be lodged within 14 days from the publication of the notice

If the notice referred to in subsection 4 has not been published the appeal concerning a direct award of contract shall be lodged

1) within 30 days of the date of publication of a contract-award notice has been published in

the Official Journal of the European Union or

2) within six months from the conclusion of the contract at the latest

Section 90

Notification of appeal to the contracting authorityentity and the list of procurement

cases

The appellant in a contract-related matter must notify the contracting authorityentity in writ-ing of referring the case to the Market Court for consideration

The notification must be delivered to the contracting authorityentity at the latest when the

complaint concerning the contract is delivered to the Market Court The notification shall be delivered to the address provided by the contracting authorityentity

38

The Market Court shall maintain and publish a list which is as comprehensive and up-to-date

as possible of contract-related matters pending at the Market Court

Section 91

The contracting authorityentity as the opponent and compensation of legal costs

In the proceedings regarding contract-related matters the contracting authorityentity shall be considered the opponent of the party or agency lodging the appeal

The provisions of Section 74 subsections 1 and 2 of the Administrative Judicial Procedure Act shall apply to the compensation of legal costs regarding contract-related matters

The provisions of Section 74 subsections 1 and 2 of the administrative Judicial Procedure Act

concerning public authorities or other public parties shall apply to the decision concerning the

liability to provide compensation for the legal costs of the opponent If one contracting authori-

tyentity has been responsible for the contracting procedure on behalf of the other contracting

authorities the obligation regarding compensation of legal costs may be placed on the con-

tracting authorityentity which acted on behalf of the other contracting authorities

Section 92

The effect of the appeal on concluding the contract

In case of a contract where the standstill period or the time limit referred to in section 81 must

be observed the contracting authorityentity may not conclude the contract if the matter has

been brought up for consideration by the Market Court

If the Market Court decides a case concerning enforcement or decides on the principal claim

before the standstill period or the time limit referred to in Section 81 has expired the contract-

ing authorityentity shall observe the standstill period or the time limit referred to in Section

81 until the end of the period notwithstanding the ruling of the Market Court

Section 93

Interim decisions of the Market Court

While the appeal is under consideration the Market Court may prohibit suspend or allow the

implementation of the decision concerning the contract award or order the contracting proce-

dure to be suspended otherwise as an interim measure for the duration of the proceedings in the Market Court

When deciding on the measure referred to in subsection 1 the Market Court shall take into

consideration that the harm caused by the measure to the opponent the rights of third par-

ties the security of the state or the public interest may not outweigh its benefits

However the decision prescribed in subsection 1 of this Section cannot be carried out in the case of a contract referred to in Section 68(2) of this Act

A legally trained member of the Market Court may alone issue a ruling as an interim measure

Section 94

Interim commitment of the contracting authorityentity

While the appeal is under consideration the contracting authorityentity may provide a written

undertaking to the Market Court stating that it will not enforce the decision concerning the contract for as long as the matter is pending in the Market Court

39

If the contracting authorityentity provides the Market Court with the undertaking referred to

in subsection 1 the Market Court will not issue without a specific reason a decision on the

obligation to interim prohibition on implementing the decision to award the contract

Section 95

Temporary organisation of a contract

If an appeal has been lodged against a contract before the Market Court the contracting au-

thorityentity may temporarily organise the contract by ordering it from a supplier who partici-

pated in the contracting procedure or from a previous supplier if the nature of the contract is

such that executing the contract cannot be postponed for the duration of the Market Court pro-ceedings

Temporary contract arrangements must not hinder the execution of the following items by means of a decision of the Market Court

1) the decision of the contracting authorityentity to cancel the contract in full or in part

2) prohibit the contracting authorityentity from applying any erroneous item included in the contract document or otherwise complying with an incorrect procedure or

3) require the contracting authorityentity to rectify its incorrect procedure

Section 96

Sanctions imposed by the Market Court

If during the contract procedure actions have been taken which are against this Act or the provisions based thereon or against European Union legislation the Market Court may

1) cancel the decision of the contracting authorityentity in full or in part

2) prohibit the contracting authorityentity from applying any erroneous item included in the contract document or otherwise complying with an incorrect procedure

3) require the contracting authorityentity to correct its erroneous procedure

4) order the contracting authorityentity to pay a compensatory fee to the party which would

have had a genuine chance to win the bidding competition had the procedure been correct

5) impose an ineffectiveness sanction on the contracting authorityentity

6) order the contracting authorityentity to pay an infringement fine to the state

7) reduce the contract term to end after a period of time specified by the Market Court has

passed

The provisions of Sections 97ndash100 shall apply to determining the sanctions mentioned in sub-

section 1 points 4ndash7 above When determining these sanctions the Market Court may consid-

er the contract to have been concluded on the basis of specific circumstances provided that

the contracting authorityentity has especially commenced the implementation of the contract

The ineffectiveness sanctions infringement fine and reduction of contract terms may only be

issued in contracts exceeding the EU thresholds referred to in Section 12 However an ineffec-tiveness sanction cannot be imposed in a service contract in accordance with Annex B

Only a compensatory fee can be imposed in a contract referred to in Section 68(2) of this Act

40

Section 97

Compensation

Provision for compensation may be made if the harm caused to the contracting authori-

tyentity rights of third parties state security and the public interest by the measure defined

in Section 96(1)(1ndash3) is considered to outweigh the benefits or if the petition has been initiat-

ed following the conclusion of the contract With respect to setting the amount of the compen-

satory fee account shall be taken of the nature of the infringement or omission by the con-

tracting authorityentity the value of the contract in question and the costs and damages in-

curred by the petitioner The Market Court may however decide not to prove for compensa-

tion if the contracting authorityentity has refrained from implementing the contract during the proceedings in the Market Court

Without a specific reason the amount of compensation shall not exceed 10 percent of the val-

ue of the contract

Section 98

Ineffectiveness

The Market Court may declare a contract ineffective if

1) the contracting authorityentity has made a direct award of contract without the basis re-ferred to in this Act and the procedures referred to in Section 81

2) the contracting authorityentity has concluded the contract although there is an obligation in the contract to observe a standstill period

3) the contracting authorityentity has concluded the contract contrary to Section 92 although

the procurement case has been submitted to the Market Court for a decision

In addition a requirement in the situation referred to in subsection 1 points 2 and 3 above is

that the contracting authorityentity has made another infringement contrary to this Act which has affected the chances of the appellant to win the contract

If the contracting authorityentity has concluded the contract in a competition based on the

framework agreement on the basis of Section 80 without observing the standstill period and if

a breach has been committed in the competition in respect of Section 27(2 or 3) such that this

has affected the chances of the appellant to win the contract the Market Court may declare the contract ineffective

The Market Court shall decide to which contractual obligations ineffectiveness shall apply Inef-

fectiveness shall apply only to unfulfilled contractual obligations

Section 99

Non-imposition of ineffectiveness

In the situations referred to in Section 98 above the Market Court may decide not to impose

ineffectiveness for compelling reasons related to the public interest or state security Economic

interests which are directly related to the contract may be deemed compelling only if ineffec-tiveness of the contract would exceptionally have inequitable consequences

The Market Court may not impose ineffectiveness if it would result in serious endangerment of

the implementation of a defence and security project essentially important with respect to

state security

Section 100

41

Infringement fines and reduction of the contract term

The Market Court may order a contracting authorityentity to pay the state an infringement

fine if

1) the Market Court has declared the contract ineffective

2) the contracting authorityentity has concluded the contract although there is an obligation in the contract to observe a standstill period

3) the contracting authorityentity has concluded the contract contrary to Section 92 although the procurement case has been submitted to the Market Court for a decision or

4) the Market Court has decided not to declare the contract ineffective for compelling reasons related to the public interest or state security in accordance with Section 99

In the situation referred to in subsection 1 point 4 above the Market Court may in addition to

or instead of imposing a sanction reduce the contract term so that it ends after a period of time specified by the Court

The Market Court may order a contracting authorityentity to pay the state an infringement

fine or reduce the contract term so that it ends after a period of time specified by the Court

this applies to service contracts referred to in Annex B of this Act the value of which exceeds

the EU threshold as defined in Section 12 if the contracting authorityentity

1) has made a direct award of contract without the basis referred to in this Act and the proce-dures referred to in Section 81 not having been complied with in the direct award

2) has concluded the contract although there is an obligation in the contract to observe the standstill period

3) has concluded the contract contrary to Section 92 although the procurement case has been submitted to the Market Court for a decision or

4) has concluded the contract in a competition based on a framework agreement on the basis

of Section 80 without observing the standstill period and if a breach has been committed in the

competition in respect of Section 27(2 or 3) such that this has affected the chances of the ap-pellant to win the contract

In addition a requirement in the situation referred to in subsection 3 points 2 and 3 above is

that the contracting authorityentity has made another infringement contrary to this Act which

has affected the chances of the appellant to win the contract

With respect to issuing a sanction the Market Court shall take into account the nature of the

mistake or omission by the contracting authorityentity and the value of the contract in ques-

tion The sanction shall not exceed 10 percent of the value of the contract

Section 101

Allocation of sanctions and cumulative effect

If one contracting authorityentity has been responsible for the contracting procedure on be-

half of the other contracting authorities the obligation to compensate for legal costs can be

placed on the contracting authorityentity that acted on behalf of the other contracting authori-

ties

With respect to the sanctions referred to in this Act the Market Court shall take into considera-

tion that the cumulative effect may not become unreasonable for the contracting authori-

tyentity or its contracting party

42

Section 102

Conditional fine

The Market Court may impose a conditional fine in order to underline the importance of com-

plying with the prohibitions or obligations referred to in this Act The provisions of the Act on

Conditional Fines (11131990) shall apply to the imposing of and sentencing to the payment of

conditional fines

If one contracting authorityentity has been responsible for the contracting procedure on be-

half of the other contracting authorities the obligation to compensate for costs can be placed

on the contracting authorityentity that acted on behalf of the other contracting authorities

Section 103

Notification of the Market Courts ruling

The ruling of the Market Court along with the instructions for appeal shall be verifiably notified under the provisions of the Administrative Judicial Procedure Act

With the consent of the appellant and the contracting authorityentity the Market Courts deci-

sion together with the instructions for appeal may be publicised using the electronic contact

information the aforementioned parties have provided to the Market Court

When electronic contact information is used the appellant and the contracting authorityentity

shall be deemed to have been notified of the decision and instructions for appeal on the date

on which the message concerning the matter is available in the recipientsrsquo reception equipment

so that the message can be handled The provisions of Section 77(1) shall apply to electronic

notification

Section 104

Prohibition to appeal

A case that is within the jurisdiction of the Market Court cannot be appealed against under the

provisions of the Local Government Act or the Administrative Judicial Procedure Act

A decision or ruling concerning a contract which has been excluded from the scope of applica-

tion of this Act on the basis of Section 6(2) and Sections 78 or 13 may not be appealed under

the Administrative Judicial Procedure Act or the Local Government Act The subcontractor may

not under the Administrative Judicial Procedure Act or the Local Government Act appeal the

decision or action taken by the contracting authorityentity concerning the subcontract

Section 105

Appeals against the decisions of the Market Court

Appeals against a ruling of the Market Court can be lodged in the Supreme Administrative Court in accordance with the Administrative Judicial Procedure Act

As referred to in Section 93(1) an appeal cannot be lodged against the ruling by the Market

Court in the Supreme Administrative Court A ruling by the Market Court does not prevent the

case from being reconsidered by the Market Court if the grounds for the previous ruling have

changed

If the Market Court has ruled that it will not grant the processing authorisation referred to in

Section 88(3) then an appeal against this ruling can only be lodged if the Supreme Adminis-

trative Court grants a leave to appeal

43

Section 106

Application of the Administrative Judicial Procedure Act

The Administrative Judicial Procedure Act shall apply to appeals unless otherwise provided by this Act

Section 107

Implementation of rulings

A ruling of the Market Court has to be observed notwithstanding any appeal unless the Su-

preme Administrative Court orders otherwise The ruling of the Market Court issuing the sanc-

tion referred to in Section 96(1)(4ndash7) may only be implemented on the basis of a final ruling

The implementation of a ruling concerning a sanction shall be supervised by the Legal Register

Centre The Legal Register Centre must be informed of any ruling by the Market Court and

Supreme Administrative Court to issue a sanction

Section 108

Compensation for damages

Those who cause damage to a candidate tenderer or supplier shall be liable to pay compensa-

tion for the damage they have caused while acting in breach of this Act or any regulations based thereon or the European Union law

However when the claim for damages refers to costs incurred as a result of the tendering pro-

cedure the candidate or tenderer is entitled to compensation if it can provide proof of the in-

correct procedure as defined in subsection 1 and that had the procedure been correct it would have had a genuine chance to win the contract

In respect of the cases defined in subsection 1 and 2 a Court of first instance shall be the

competent court in accordance with Chapter 10 of the Code of Judicial Procedure

Chapter 16

Further provisions

Section 109

Disclosure of information

Notwithstanding the provisions concerning confidentiality provided for in the Act on the Open-

ness of Government Activities or in any other act the contracting authorityentity shall supply

statistics and other information concerning the different stages of the contract and performed

contracts to the Finnish authorities and European Union bodies to monitor contracts and ex-

change information on the scale and to the time limit required by European Union law Pursu-

ant to this Act the Ministry of Economic Affairs and Employment has the right to forward in-

formation it has received to the European Union authorities notwithstanding the regulations on confidentiality

The contracting authorityentity shall draw up a written report on each contract and framework

agreement which includes essential information on the contract contract procedure and the

candidates and tenderers who participated as well as on the decisions made in connection with

44

the contract The report and its main content shall be forwarded on request to the European

Commission A separate report is not required if corresponding information can be found in the

contract decision or other documents

To document the course of the realised contract procedure the contracting authorityentity

shall implement necessary measures in an electronic format

More specific rules are laid down in a Government decree on the obligation to provide statistics

and the responsibility of the contracting authorityentity to draw up reports on contract proce-

dures and contract decisions as referred to in subsection 1 which are to be forwarded to the

European Union bodies

Section 110

Entry into force and transitional provisions

This Act enters into force on 1 January 2012

If a contract procedure is started before the entry into force of this Act the provisions that

were in force at the time when this Act entered into force shall be applied The contract proce-

dure shall be deemed to have commenced when the contract notice was published A contract

which does not require the publication of the contract notice shall be deemed to have com-

menced when the invitation to tender or a meeting is sent or negotiations with suppliers begin

Measures necessary for the implementation of this Act may be undertaken before the Actrsquos

entry into force

45

ANNEX A

Primary services

Group No

Matter CPV Reference No

1 Maintenance and repair services 50000000-5 50100000-6-50884000-4 (except 50310000-1-50324200-4 and 50116510-9 50190000-3 50229000-6 50243000-0) and 51000000-9-51900000-1

2 Services related to international military assistance

75211300-1

3 Defence services military defence services and civil defence services

75220000-4 75221000-1 75222000-8

4 Investigation and security services 79700000-1-79720000-7

5 Land transport services 60000000-8 60100000-9-60183000-4 (except 60160000-7 60161000-4) and 64120000-3-64121200-2

6 Air transport services for passengers and freight except transport of mail

60400000-2 60410000-5-60424120-3 (except 60411000-2 60421000-5) 60440000-4-60445000-9 and 60500000-3

7 Transport of mail by land and by air 60160000-7 60161000-4 60411000-2 60421000-5

8 Railway transport services 60200000-0-60220000-6

9 Sea transport services 60600000-4-60653000-0 and 63727000-1-63727200-3

10 Support and auxiliary transport services 63100000-0-63111000-0 63120000-6-63121100-4 63122000-0 63512000-1 and 63520000-0-6370000-6

11 Telecommunications services 64200000-8-64228200-2 72318000-7 and 72700000-7-72720000-3

12 Financial services insurance services 66500000-5-66720000-3

13 Data-processing and related services 50310000-1-50324200-4 72000000-5-72920000-5 (except 72318000-7 and 72700000-7-72720000-3) 79342410-4 9342410-4

14 Research and development services(sup1) and evaluation tests

73000000-2-73436000-7

15 Accounting auditing and bookkeeping services

79210000-9-79212500-8

16 Management consulting(sup2) and related services

73200000-4-73220000-0 79400000-8-79421200-3 and 79342000-3 79342100-4 79342300-6 79342320-2 79342321-9 79910000-6 79991000-7 98362000-8

17 Architectural services engineering services and integrated engineering services urban planning and landscape architectural services related scientific and technical consulting services technical testing and analysis services

71000000-8-71900000-7(except 71550000-8) and 79994000-8

18 Building cleaning services and building and property management services

70300000-4-70340000-0 and 90900000-6-90924000-3

19 Sewage and refuse disposal services 90400000-1 to 90743200-9 (except 90712200-3)

46

sanitation and similar services 90910000-9-90920000-2 and 50190000-3 50229000-6 50243000-0

20 Training and simulation services in the fields of defence and security

80330000-6 80600000-0 80610000-3 80620000-6 80630000-9 80640000-2 80650000-5 80660000-8

(sup1) Except the research and development services referred to in Section 13(2)(5) (sup2) Except arbitration and conciliation services ANNEX B Secondary services

Group No

Matter CPV Reference No

21 Hotel and restaurant services 55100000-1-55524000-9 and 98340000-8-98341100-6

22 Support and auxiliary transport services 63000000-9-63734000-3 (except 63711200-8 63712700-0 63712710-3) 6372700-1-63727200-3 and 98361000-1

23 Legal services 79100000-5-79140000-7

24 Employment and personnel recruitment services(sup1)

79600000-0-79635000-4 (except 79611000-0 79632000-3 79633000-0) and 98500000-8-98514000-9

25 Health and social services 79611000-085000000-9 and -85323000-9 (except 85321000-5 and 85322000-2)

26 Other services

(sup1) Except employment contracts

47

ANNEX C NACEsup1ordm

Main category F CONSTRUCTION CPV code

2-digit level

3-digit level

4-digit level

Description Comments

45 Construction This two-digit level includes the following construction of new buildings and works reconstruction and common repairs

45000000

451 Site preparation

45100000

4511 Demolition and wreck-ing of buildings earth moving

This four-digit level includes the following - demolition of buildings and other structures - clearing of building sites and earth moving site excavation landfill and levelling trench dig-ging quarrying blasting etc - site preparation for mining

- overburden removal and other development and prepa-ration of mines and mining sites

This four-digit level also includes - building site underdrainage - drainage of agricultural or forestry land

45110000

4512 Test drilling This four-digit level includes the following - test drilling test boring and sampling for construction geophysical geological or similar purposes This four-digit level excludes the following - drilling of oil or gas wells comp 1120 - water well drilling 4525

45120000

sup1deg Council regulation (EEC) No 303790 (Official Journal of the European Union 293 24 October 1990 p 1) on the statistical classification of economic activities in the European Community issued on 9 October 1990 regulation as amended by Commission Regulation (EEC) No 76193 (Official Journal of the European Union L 83 3 April 1993 p 1) If there are differences of opinion between CPV and NACE NACE nomenclature shall apply

48

- shaft sinking comp 4525 - oil and gas field exploration geophysical geological and seismic surveying comp 7420

452 Building complete constructions or parts thereof

45200000

4521 Building work This four-digit level includes the following - Construction of all types of buildings - civil engineering and hydraulic engineering works - building of bridges including those for elevated highways metro tunnels - construction of long-distance pipelines communication cables and long-distance networks for power lines - construction of long-distance pipelines telecommunication ca-bles and municipal network power lines related installation work - on-site assembly and erection of pre-fabricated constructions This four-digit level excludes the following - services related to oil and gas extraction comp 1120 - erection of complete prefabricat-ed constructions from self-manufactured parts not of con-crete comp 20 26 28 - construction work other than buildings for stadiums swimming pools gymnasiums tennis courts golf courses and other sports installations comp 4523 building installation comp 453 - building completion comp 454 - architectural and engineering services comp 7420 - project management for construction comp 7420

45210000 Except 45213316 45220000 45231000 45232000

4522 Erection and covering of roofs

This four-digit level includes the following - erection of roofs - roof covering - waterproofing

45261000

49

4523 Construction of highways streets airports and sports equipment

This four-digit level includes the following - construction of highways streets other vehicular and pedestrian ways - construction of railways - construction of airfield runways - construction work other than build-ings for stadiums swimming pools gymnasiums tennis courts golf courses and other sports installations - painting of markings on road surfaces and car parks This four-digit level excludes the following - preliminary earth moving comp 4511

45212212 and DA03 45230000 except 45231000 45232000 45234115

4524 Construction of water projects

This four-digit level includes the following building works - construction of waterways harbour and river works marinas locks etc - construction of dams and breakwaters - dredging - subsurface work

45240000

4525 Other construction work

This four-digit level includes the following - construction activities specialising in one aspect common to different kinds of structures requiring specialised skill or equipment - construction of foundations including pile driving - water well drilling and construction shaft sinking - erection of non-self-manufactured steel frame elements - steel bending - bricklaying and stone setting - erecting and dismantling of scaffolds and work platforms including rental of scaffolds and work platforms - erection of chimneys and industrial ovens This four-digit level excludes the following - rental of scaffolds without erecting and dismantling comp 7132

45250000 45262000

453 Building installation 45300000

4531 Installation of electri-cal wiring and fittings

This four-digit level includes the installation in buildings or other

45213316 45310000

50

construction projects of - electrical wiring and fittings - telecommunications systems - electrical heating systems - residential antennas - fire alarms - burglar alarm systems - lifts and escalators - lightning conductors etc

Except 45316000

4532 Insulation work This four-digit level includes the following - installation in buildings or other construction projects of thermal sound or vibration insulation This four-digit level excludes the following - waterproofing comp 4522

45320000

4533 Plumbing This four-digit level includes the installation in buildings or other construction projects of the following - plumbing and sanitary equipment and fittings - gas fittings - heating ventilation refrigeration or air-conditioning equipment and ducts - sprinkler systems This four-digit level excludes the following - installation of electrical heating systems comp 4531

45330000

4534 Other installation work

This four-digit level includes the fol-lowing - installation or other construction of illumination and signalling systems for roads railways airports and harbours - installation in buildings or other construction projects of fittings and fixtures

45234115 45316000 45340000

454 Building completion 45400000

4541 Plastering This four-digit level includes the following - application in building or other construction projects of interior and exterior plaster or stucco and other similar lathing materials

45410000

4542 Joinery installation This four-digit level includes the following - installation of non-self-manufactured doors windows door

45420000

51

and window frames fitted kitchens staircases and shop fittings made of wood or other materials - completion of interiors such as ceilings wooden wall coverings wall paneling installation of movable partitions etc This four-digit level excludes the following - laying of parquet and other wooden floor coverings comp 4543

52

4543 Floor covering and wall upholstery

This four-digit level includes the following - covering or tiling of buildings or other structures using - ceramic concrete or stone wall or floor tiles or stones - parquet or other wooden floor covering - wall-to-wall carpeting or linoleum also rubber or plastic floor covering - wall or floor covering made of mosaic marble granite or slate - wallpaper

45430000

4544 Painting and glazing This four-digit level includes the following - interior and exterior painting of buildings - exterior painting of other structures - installation of mirrors glass etc This four-digit level excludes the following - installation of windows comp 4542

45440000

4545 Other building completion

This four-digit level includes the following - construction of private swimming pools - cleaning the exterior surfaces of buildings using steam sandblasting or other similar method - other building completion work not classified elsewhere This four-digit level excludes the following - cleaning of buildings and other structures comp 7470

45212212 and DA03 45450000

455 Rental of construction or dismantling equip-ment with operators

45500000

4550 Rental of construction or dismantling equip-ment with operators

This four-digit level excludes the following - rental of construction or dismantling machines and equipment without operators comp 7132

45500000

27

shall take into account the factors which will genuinely affect the price of the tender paid by

the contracting authorityentity such as the financial subsidy in question

Chapter 9 Subcontract agreements

Section 60

Subcontracts with related companies

The contracting authorityentity may request the tenderer to state in its tender which part of

the contract it plans to award as a subcontract to related companies and to list these compa-

nies The contracting authorityentity may also request tenderers submitting tenders as a

group as defined in Section 56 to indicate in their tender which part of the contract they plan

to award as a subcontract to their related companies and to list these companies If the rela-

tionships between the companies change during the procurement procedure the tenderer shall update the information included in its tender

A related company means a company which is under the direct or indirect control of the ten-

derer or which has direct or indirect control of the tenderer or which jointly with the tenderer

is under the control of another company on the basis of ownership financial contribution or the

regulations under which the company operates A company is considered to have control of

another company when it owns the majority of that companys unrestricted shareholder equity

controls the majority of the companys shareholders voting rights or may appoint half of the

members of the companys administrative managerial or supervisory body

The provisions of Sections 62-66 of this Act concerning subcontracting agreements are not

applicable to subcontracting agreements which the tenderer has entered into with a related

company or when the tender has been submitted by a group as defined in Section 56 to a

company belonging to the same group or a company which is a related company of a company

belonging to the group

Section 61

Selecting a subcontractor

The tenderer may select its subcontractors in all subcontracting agreements unless otherwise prescribed in Sections 62ndash66 of this Act

Section 62

Requirements concerning subcontracting agreements

The contracting authorityentity shall define the requirements for a subcontracting agreement

in the contract notice and further specify them in the invitation to tender In defining the re-

quirements for subcontracting agreements the principles of proportionality and non-discrimination must be complied with

The contracting authorityentity may require that the tenderer state in the tender which part

or parts of the contract it plans to subcontract to third parties the content of the subcontract-ing agreement and the chosen subcontractors shall also be stated

In addition to the provisions of subsection 2 the contracting authorityentity may require that

the tenderer selected as a contracting party shall

1) in accordance with the procedures laid down in Sections 64ndash66 of this Act invite bids on

part or all of the subcontracts included in the tender and stated in the notice in accordance with subsection 2 or

2) award the minimum amount of the contract value as defined by the contracting authori-

tyentity to third parties as subcontracts and invite bids on these subcontracts in accordance

with the procedures laid down in Sections 64ndash66 of this Act The contracting authorityentity

shall in that case define as percentages the minimum and maximum amount the tenderer shall

award to third parties as subcontracts and require that the tenderer state in its tender which

28

part or parts of the contract it plans to award to third parties as subcontracts in order to fulfil

the requirement of the contracting authorityentity The maximum amount defined by the con-tracting authorityentity shall not exceed 30 percent of the value of the contract or

3) invite bids on a part or parts of the subcontracts which it plans to award to third parties in

addition to the subcontracts mentioned in point 2 above In that case the contracting authori-

tyentity shall require that the tenderer specify in its tender those parts of the contract which it

plans to award as subcontracts to third parties in addition to the subcontracts mentioned in point 2 above

In addition to the provisions of subsections 2 and 3 the contracting authorityentity may re-

quire that the tenderer report any changes occurring at the subcontractor level during the im-

plementation of the contract

The contracting authorityentity shall set the maximum and minimum amount as defined in

subsection 3 point 2 having regard to the object and value of the contract and the character of the industry sector in question the competitive situation and technical capacity

The tenderer has the right to award more subcontracts to third parties than required by the contracting authorityentity in accordance with this Section

Section 63

Rejecting a subcontractor

The contracting authorityentity may specify requirements concerning the subcontractors fi-

nancial and economic situation technical capacity and professional competence information

security security of supply or quality These as well as other requirements concerning the

suitability of the subcontractor shall be stated in the contract notice These requirements shall

be equitable and non-discriminatory and conform to the requirements set in the invitation to tender concerning the suitability of the candidate or tenderer

The contracting authorityentity may decide to reject a subcontractor selected by the tenderer

during the contract procedure or the implementation of the contract if the subcontractor does

not meet the requirements set in the contract notice concerning the suitability of the subcon-

tractor or the exclusion criterion laid down in Section 47 or Section 48 applies to the subcon-

tractor The contracting authorityentity shall justify the rejection in writing to the tenderer

Section 64

Implementation of subcontracts

A tenderer selected as a contracting party shall act openly and treat any and all subcontractors

equally and in a non-discriminatory manner

A tenderer selected as a contracting party shall provide for the publication a subcontract notice

concerning those subcontracts to which the bidding obligation laid down in Section 62(3) ap-

plies and whose estimated value without value added tax exceeds the EU thresholds men-

tioned in Section 12 The notice obligation shall not apply to a subcontract which fulfills the

requirement set for a direct contract award mentioned in Sections 22ndash23 The provisions of

Sections 14ndash16 shall apply to the calculation of the estimated value of subcontracts

The tenderer selected as the contracting party shall specify in the subcontract notice the crite-

ria which the tenderer will apply in assessing the suitability of the subcontractors and in select-

ing them These criteria shall be equitable and non-discriminatory and conform to the criteria

that the contracting authorityentity applies in assessing the suitability of the tenderers The

requirements shall be related to the object of the subcontract and be proportional to the scope

of the subcontract

A tenderer selected as a contracting party may publish a subcontract notice also concerning

those subcontracts which meet the criteria for the subcontracts referred to in Sections 22ndash23

29

Section 65

Exemption from an obligation related to subcontracting

A tenderer selected as a contracting party may not be required to enter into a subcontract if it

indicates in a manner satisfactory to the contracting authorityentity that none of the subcon-

tractors that participated in the competition or none of their tenders fulfil the requirements

set in the subcontract notice and therefore the tenderer selected as a contracting party could

not fulfil the contract requirements

Section 66

Framework agreements

The provisions of Section 62 shall not apply to subcontracts awarded by the tenderer selected

as a contracting party if the framework agreement was put out to tender in accordance with

the provisions of Section 64

Subcontracts based on a framework agreement shall be awarded in accordance with the condi-

tions confirmed in the framework agreement and concluded between the original participants

to the framework agreement Conditions analogous to those of the framework agreement shall be complied with in subcontracting agreements

The framework agreement may not be used in such a way as to distort restrict or prevent

competition

The term of the framework agreement may not exceed seven years In exceptional cases the

framework agreement may be longer in duration when duly justified by the expected life cycle

of the supplies equipment and systems delivered and the technical problems that might re-

sult from the change of supplier

Section 67

The responsibility of the tenderer for carrying out the contract

The requirements set by the contracting authorityentity on the basis of this Chapter and the

notices issued by the tenderers based on them do not limit the responsibility of the tenderer

selected as a contracting party to carry out the contract PART III

National procedures

Chapter 10 Tendering procedures for contracts below the EU threshold for second-

ary service contracts referred to in Annex B and for certain other contracts

Section 68

Contract award procedures

The contract award procedures specified in this Chapter may be used for service contracts

public works contracts and the service contracts referred to in Annex A which are below the EU

threshold referred to in Section 12(1) but above the national threshold referred to in Section

13(1) and for secondary service contracts referred to in Annex B which are above the national

threshold referred to in Section 13(1)

The procedures laid down in this Chapter may also be used for defence contracts referred to in

Section 5 when the value of the defence contracts exceed the national threshold as referred to

in Section 13 provided that the criteria set in Article 346(1)(b) of TFEU are fulfilled

30

Section 69

General rules of procedure

The contracting authorityentity shall aim to take advantage of the prevailing competitive con-

ditions and award the contract primarily through competitive bidding A sufficient number of

tenders shall be requested in terms of the scope and subject matter of the contract to ensure

competition

A public notice shall be issued however the publication obligation does not apply in the case

of contracts that fulfil the criteria set in Article 346(1)(b) of TFEU

The contracting authorityentity may request a tender directly from one supplier if competitive

bidding cannot be carried out for reasons justified on the basis of national defence state secu-rity or security of supply

The contracting authorityentity may also request a tender directly from one supplier if

1) no tenders or no suitable tenders were received in the competitive bidding carried out

previously a further requirement is that the conditions of the original invitation to ten-

der are not fundamentally changed

2) for technical reasons or for reasons connected with the protection of exclusive rights the contract may be awarded only to a particular supplier

3) for reasons of urgency brought about by a crisis it is not possible to carry out competi-tive bidding

4) execution of the contract is absolutely necessary and competitive bidding cannot be

carried out for reasons of extreme urgency brought about by events unforeseeable by

and independent of the contracting authorityentity

5) the product to be acquired are manufactured purely for scientific or research purposes

and it is not a matter of establishing commercial viability of the products or to recover research and development costs

6) the object of the contract is a research and development service that has not been ex-cluded from the scope of this Act on the basis of Section 8

7) the contract is necessary in order to determine whether the final result of the research

and development service is suitable to be used as intended by the contracting authori-tyentity

8) the object of the contract consists of supplies quoted and purchased on a commodity market

9) the supplies are purchased on particularly advantageous terms from either a supplier

winding up its business activities or from the receivers of a bankruptcy or liquidators in

insolvency proceedings an arrangement with creditors or a similar procedure

10) the object of the contract is a second-hand product

11) the object of the contract is based on a supplementary contract right incorporated into

the contract

12) the object of the contract is additional deliveries by the original supplier which are in-

tended either as a partial replacement of existing supplies or installations or as the ex-

tension of existing supplies or installations and a change of supplier would result in in-

compatibility or disproportionate technical difficulties in operation and maintenance

13) the object of the contract is additional works or services not included in the project ini-

tially but which have through unforeseen circumstances become necessary for the per-

formance of the works or services as originally described

31

Section 70

Negotiations with tenderers and specifying the tender and the invitation to tender

The contracting authorityentity may discuss all aspects of the contract with the tenderers dur-

ing the negotiation provided that the negotiations do not result in changing constituent ele-

ments in the invitation to tender in a discriminating manner or in a manner which distorts

competition

The purpose of the negotiations shall be to select the best tender in accordance with Section

73(2) or to determine one or more alternative solutions for contract implementation before

sending the final invitation to tender The dialogue may take place in successive stages in or-

der to reduce the number of tenders or solutions to be discussed during the dialogue by apply-

ing the comparison criteria indicated in the invitation to tender or project description

In competitive bidding the requirement for negotiations shall be that the negotiations and the

criteria to be complied with during the negotiations have been stated in the invitation to tender

or the project description

The contracting authorityentity shall ensure equal treatment of all candidates and tenderers

during the negotiations and shall not provide information in a manner that may compromise

the equal treatment of the participants in competitive bidding

Section 71

Invitation to tender

The invitation to tender shall be submitted in writing and drawn up to be sufficiently clear in

order to enable submission of commensurate and mutually comparable tenders The invitation

to tender shall contain all information that is particularly important in terms of the contracting

procedure and submitting the tender

The invitation to tender shall include the award criterion and where the criterion for the award is that of the economically most advantageous tender the comparison criteria and the ranking thereof The invitation to tender shall indicate a reasonable time allotted for the tenderers to submit a tender taking into consideration the scope and subject matter of the contract

The contracting authorityentity may charge a reasonable fee for the invitation-to-tender doc-

uments to recover the costs arising from the exceptionally extensive scope of the documenta-

tion the materials related thereto or other similar factors

Section 72

Drawing up the invitation to tender and submitting the tender

The invitation to tender and the tenders based thereon shall be drawn up in writing They may be executed orally only in exceptional circumstances if the written procedure is justifiably not appropriate If the invitation to tender or the tenders are not drawn up in writing a record shall be kept of the negotiations held with the tenderers the record shall indicate the infor-mation impacting the course of the procedure and the position of the tenderers

Section 73

Selection of a tender and a tenderer rejecting a tender

The contracting authorityentity may exclude from the competitive bidding any supplier which

taking into consideration the scope and object of the contract and other criteria does not pos-

sess the qualifications to carry out the contract The contracting authorityentity may exclude

32

from the competitive bidding any tender submitted by a tenderer who does not possess the

qualifications to carry out the contract when taking into consideration the scope and object of

the contract and other criteria

The contracting authorityentity shall award the contract to the tenderer whose tender has the

lowest price or complies with the comparison criteria set in the invitation to tender and is eco-

nomically the most advantageous

The contracting authorityentity may reject a tender which does not fulfil the essential condi-

tions set in the invitation to tender or has an abnormally low price in terms of the subject mat-

ter and scope of the contract Before it may reject a tender the contracting authorityentity

shall request in writing details of the constituent elements of a tender that is abnormally low in

price

PART IV

General provisions on decisions concerning contract awards conclusion of contracts

procurement rectification public access to the contract documents and further provi-sions

Chapter 11

Decisions concerning the award of contracts and notification thereof

Section 74

Decision concerning the award

The contracting authorityentity shall provide in writing the decisions affecting the position of

the candidates and tenderers and the results of the tendering procedure including the grounds for the outcome of the procedure

The decision or the related documentation shall state the factors that fundamentally affected

the outcome including the grounds for rejecting the candidate tenderer or tender and the

grounds on which the accepted contracts were compared As regards a decision concerning

asking for bids for a contract based on a framework arrangement stating the facts showing

that the selection and award criteria have been applied as required under Section 27 shall

suffice If the standstill period referred to in Section 79 applies to the contract the decision or

the related documents shall also state the period of time after which the contract may be awarded

The contracting authorityentity is not required to make a decision referred to in this Section

concerning a contract for the additional supplies referred to in Section 23 or Section 69(4)(12)

and additional service or contract referred to in (13) or the temporary arrangements for a con-tract referred to in Section 95

In contracts based on framework agreements the contracting authorityentity is not required to make the decision referred to in this Section if

1) the contract is awarded in accordance with the conditions laid down in the framework

agreement without asking for bids or

2) the competitive bidding is based on a framework agreement when the value of the contract

does not exceed the EU threshold

33

Section 75

Suspending the contract award procedure

The contract award procedure can be suspended only for verifiable and justifiable reason

The provisions of Section 74 concerning contract ruling shall apply to the suspension of the

contract award procedure

Section 76

Appeal instructions and instructions for request for rectification

Instructions for appeal shall accompany the decisions made by the contracting authori-

tyentity explaining how to refer a case to the Market Court for consideration contact infor-

mation of the contracting authorityentity for the notice referred to in Section 90 and instruc-

tions for seeking rectification (petition instructions) explaining how the candidate or tenderer can have the case submitted for reconsideration through procurement rectification

With regard to the issuing and amending appeal and petition instructions the provisions of

Chapter 3 of the Administrative Judicial Procedure Act (5861996) shall apply in terms of ap-

peals and the provisions of Chapter 7 of the Administrative Procedure Act (4342003) shall

apply in terms of petition instructions

Section 77

Notification of the decision concerning the contract award

The decision of the contracting authorityentity including the grounds for the decision and the

appeal and petition instructions shall be submitted in writing to the parties concerned The de-

cision including the aforementioned documents shall be submitted using the electronic con-

tact information which the candidate or tenderer has given to the contracting authorityentity

When using the electronic contact information the candidate and tenderer shall be considered

to have received notice of the decision and the accompanying documents on the date on

which the electronic message containing the aforementioned documents is available in the re-

cipients reception equipment such that the message can be handled Such a point in time shall

mean the date on which the message was sent unless a reliable explanation concerning the

malfunction of telecommunications links or another analogous reason because of which the

electronic message reached the recipient later When electronic notification is used the con-

tracting authorityentity shall include in the message a separate note concerning the date

when the message was sent

The decision including the grounds for it and the appeal and petition instructions may also be

sent via regular mail under the Administrative Procedure Act Candidates and tenderers shall

be considered to have received notification of the decision and the accompanying documents

on the seventh day from the date on which they were sent unless the candidate or tenderer

proves that the notification occurred at a later date

Notification on the decision of the contracting authorityentity shall be issued without undue

delay at the latest 15 days from the date on which the contracting authorityentity receives a written request concerning notification on the decision that was made

34

Chapter 12

Public contract

Section 78

Concluding a public contract

Having made the decision to award a public contract the contracting authorityentity shall

conclude the contract The contract is concluded upon signing a written agreement

Section 79

Standstill period

In the case of a contract above the EU threshold referred to Section 12 above the contract can

be concluded at the earliest 21 days from the date when the candidate or tenderer received or is considered to have received the decision and instructions for appeal (standstill period)

A standstill period shall not be applied in direct contract awards

The provisions of Section 92 shall apply to the effect of an appeal on concluding a contract

Section 80

Exceptions to the compliance with the standstill period

The standstill period need not be upheld if

1) the contract concerns a procurement carried out on the basis of the framework agreement in accordance with Section 27

2) the contract is awarded to the tenderer who submitted the only acceptable tender and no

other tenderers or candidates remain in the competitive bidding whose position would be af-

fected by the selection of a co-contractor

3) the contract concerns a procurement referred to in Section 68(2)

Section 81

Notification of direct awards and conclusion of public contracts

In direct awards exceeding the EU threshold the contracting authorityentity may after hav-

ing made the award decision send a notice for publication concerning the direct award of con-

tract before concluding the contract In that case the contract can be concluded at the earli-est 14 days after the publication of the notice in the Official Journal of the European Union

Chapter 13

Procurement rectification

Section 82

Rectification of a procurement

The contracting authorityentity may remove an incorrect decision or annul an award decision

made during the contracting procedure concerning the legal status of the candidates or ten-

35

derers and make a new decision (procurement rectification) if the award decision or other deci-

sion reached during the contracting procedure is based on an error that occurred in the appli-cation of the law

Amending an award decision or other decision does not require the consent of the party con-

cerned However an award decision or other decision cannot be amended through procure-

ment rectification if the contract has been concluded

Section 83

Initiation of procurement rectification

The contracting authorityentity may take up a procurement rectification on its own initiative

or in response to a demand of the party in question The contracting authorityentity shall noti-fy the concerned parties immediately of the initiation of a procurement rectification

A subcontractor does not have the status of a concerned party referred to in subsection 1 of this section in terms of the matter concerning the contract

The concerned party shall present the demand within 14 days after receipt of the notification

of the award decision or other decision made by the contracting authorityentity during the

contracting procedure The contracting authorityentity itself may amend the award decision or

other decision no later than 60 days after the date the decision concerning the procurement rectification is made

Appealing the case to the Market Court does not prevent a procurement rectification or its pro-

cessing A procurement rectification may also apply to a decision of the contracting authori-

tyentity that has become legally binding if the case has not been submitted to the Market

Court for ruling

Section 84

Effect of the processing of procurement rectification on the proceedings in the Mar-ket Court

The initiation and processing of a procurement rectification do not affect the time limit within

which the concerned party has the right pursuant to this Act to submit an appeal against the

decision to the Market Court

If the award decision or other decision that was reached during the contract award procedure

is to be amended and has been appealed against before the Market Court the Market Court

shall be notified of the processing of the case through procurement rectification and informed

of the decision reached In processing a procurement rectification the contracting authori-

tyentity may prohibit the enforcement of the award decision or other decision or order it to be

suspended The Market Court shall be notified of a prohibition or suspension of enforcement if an appeal has been lodged against the decision in the Market Court

If the contracting authorityentity amends its award decision or other decision by means of a

procurement rectification such that as a result the appellant to the Market Court no longer has

the need for judicial relief or the need for a justified decision the Market Court may decline to

process such a case without giving a ruling on the principal claim

Section 85

The application of procurement rectification to other contracts

A procurement rectification can also be applied to amend an award decision or other decision

made by the contracting authorityentity during the contracting procedure to which this Act

36

shall not apply pursuant to Section 6(2) and Sections 7 8 or 13 A decision made on account

of such a contract rectification may not be appealed against in the Market Court or under the Administrative Judicial Procedure Act or Local Government (Act 3651995)

Chapter 14

Public access to the contract documents

Section 86

Application of the provisions concerning public access to the contract documents

The Act on the Openness of Government Activities (6211999) shall apply to public access to

the documents of the contracting authorityentity and the fees charged for the documents if

the contracting authorityentity is the authority referred to in Section 4 of the aforementioned

Act or if it is obliged to comply with that Act on the basis of a provision contained elsewhere in the Act

In terms of the right of parties other than the participants in the competitive bidding conducted

by the contracting authorityentity referred to in subsection 1 to have access to the docu-

ments drawn up and received for processing of the tender and the confidentiality obligation of

those employed by the contracting authorityentity the provisions of the Act on the Openness

of Government Activities shall apply to the right of concerned parties to have access to the

document to how public access to the document is determined and to the processing and resolving of the matter concerning access to information

The decision of the contracting authorityentity which has resolved the matter concerning ac-

cess to information can be appealed in accordance with the provisions of Section 33 of the Act

on the Openness of Government Activities The Supreme Administrative Court in whose judicial

district the contracting authorityentity is located is the competent Supreme Administrative

Court for considering the appeal submitted on the basis of a decision made by a party other

than the contracting authorityentity acting as an authority

Chapter 15

Appealing and the implications thereof

Section 87

Parties entitled to appeal

A concerned party may appeal the matter to the Market Court by issuing a complaint A sub-

contractor does not have the position of an interested party referred to in subsection 1 of this Section in terms of the matter concerning the contract

In matters concerning control procedures of the European Union the Ministry of Economic Af-

fairs and Employment may also refer the matter to the Market Court for consideration

Section 88

Object of the appeal

An appeal may be lodged before the Market Court against an award decision of the contracting

authorityentity referred to in this Act or other decision reached by the contracting authori-

tyentity during the contracting procedure which affects the status of the candidate or the ten-derer

37

An appeal may not be lodged before the Market Court against an award decision or other deci-

sion of the contracting authorityentity which concerns only the preparation of the contracting

procedure An appeal may not be lodged against a decision or other measure taken by the

supplier selected as a contracting party concerning a subcontracting agreement or an award

decision or determination made by the contracting authorityentity during the implementation of the contract

A contract based on a framework agreement referred to in Section 27 above and a contract

referred to in Section 68(2) may not be appealed unless a processing authorisation is issued by the Market Court The authorisation shall be issued if

1) the processing of the case is important in terms of applying the Act in other similar matters

or

2) there is a cogent reason for it related to the procedures of the contracting authorityentity

Section 89

Time period for appeal

Unless otherwise prescribed in this Section an appeal must be lodged in writing within 14 days

from the date when the candidate or tenderer received the notice concerning the contract with the instructions for appeal

If the contracting authorityentity has concluded a public contract after the contract decision

was issued on the basis of Section 80 point 1 without complying with the standstill period

the appeal shall be lodged within 30 days from the date when the tenderer has received notice

of the decision with the instructions for appeal

An appeal before the Market Court shall be lodged within six months of the date of the contract

decision provided that the candidate or tenderer has received notice of the contract decision

and the contract decision or appeal instructions were materially deficient or the appeal instruc-tions have been missing altogether

If the contracting authorityentity has with regard to a contract above the EU threshold re-

ferred to in Section 12 above delivered a notice regarding a direct award of contract for publi-

cation in the Official journal of the European Union the complaint must be lodged within 14 days from the publication of the notice

If the notice referred to in subsection 4 has not been published the appeal concerning a direct award of contract shall be lodged

1) within 30 days of the date of publication of a contract-award notice has been published in

the Official Journal of the European Union or

2) within six months from the conclusion of the contract at the latest

Section 90

Notification of appeal to the contracting authorityentity and the list of procurement

cases

The appellant in a contract-related matter must notify the contracting authorityentity in writ-ing of referring the case to the Market Court for consideration

The notification must be delivered to the contracting authorityentity at the latest when the

complaint concerning the contract is delivered to the Market Court The notification shall be delivered to the address provided by the contracting authorityentity

38

The Market Court shall maintain and publish a list which is as comprehensive and up-to-date

as possible of contract-related matters pending at the Market Court

Section 91

The contracting authorityentity as the opponent and compensation of legal costs

In the proceedings regarding contract-related matters the contracting authorityentity shall be considered the opponent of the party or agency lodging the appeal

The provisions of Section 74 subsections 1 and 2 of the Administrative Judicial Procedure Act shall apply to the compensation of legal costs regarding contract-related matters

The provisions of Section 74 subsections 1 and 2 of the administrative Judicial Procedure Act

concerning public authorities or other public parties shall apply to the decision concerning the

liability to provide compensation for the legal costs of the opponent If one contracting authori-

tyentity has been responsible for the contracting procedure on behalf of the other contracting

authorities the obligation regarding compensation of legal costs may be placed on the con-

tracting authorityentity which acted on behalf of the other contracting authorities

Section 92

The effect of the appeal on concluding the contract

In case of a contract where the standstill period or the time limit referred to in section 81 must

be observed the contracting authorityentity may not conclude the contract if the matter has

been brought up for consideration by the Market Court

If the Market Court decides a case concerning enforcement or decides on the principal claim

before the standstill period or the time limit referred to in Section 81 has expired the contract-

ing authorityentity shall observe the standstill period or the time limit referred to in Section

81 until the end of the period notwithstanding the ruling of the Market Court

Section 93

Interim decisions of the Market Court

While the appeal is under consideration the Market Court may prohibit suspend or allow the

implementation of the decision concerning the contract award or order the contracting proce-

dure to be suspended otherwise as an interim measure for the duration of the proceedings in the Market Court

When deciding on the measure referred to in subsection 1 the Market Court shall take into

consideration that the harm caused by the measure to the opponent the rights of third par-

ties the security of the state or the public interest may not outweigh its benefits

However the decision prescribed in subsection 1 of this Section cannot be carried out in the case of a contract referred to in Section 68(2) of this Act

A legally trained member of the Market Court may alone issue a ruling as an interim measure

Section 94

Interim commitment of the contracting authorityentity

While the appeal is under consideration the contracting authorityentity may provide a written

undertaking to the Market Court stating that it will not enforce the decision concerning the contract for as long as the matter is pending in the Market Court

39

If the contracting authorityentity provides the Market Court with the undertaking referred to

in subsection 1 the Market Court will not issue without a specific reason a decision on the

obligation to interim prohibition on implementing the decision to award the contract

Section 95

Temporary organisation of a contract

If an appeal has been lodged against a contract before the Market Court the contracting au-

thorityentity may temporarily organise the contract by ordering it from a supplier who partici-

pated in the contracting procedure or from a previous supplier if the nature of the contract is

such that executing the contract cannot be postponed for the duration of the Market Court pro-ceedings

Temporary contract arrangements must not hinder the execution of the following items by means of a decision of the Market Court

1) the decision of the contracting authorityentity to cancel the contract in full or in part

2) prohibit the contracting authorityentity from applying any erroneous item included in the contract document or otherwise complying with an incorrect procedure or

3) require the contracting authorityentity to rectify its incorrect procedure

Section 96

Sanctions imposed by the Market Court

If during the contract procedure actions have been taken which are against this Act or the provisions based thereon or against European Union legislation the Market Court may

1) cancel the decision of the contracting authorityentity in full or in part

2) prohibit the contracting authorityentity from applying any erroneous item included in the contract document or otherwise complying with an incorrect procedure

3) require the contracting authorityentity to correct its erroneous procedure

4) order the contracting authorityentity to pay a compensatory fee to the party which would

have had a genuine chance to win the bidding competition had the procedure been correct

5) impose an ineffectiveness sanction on the contracting authorityentity

6) order the contracting authorityentity to pay an infringement fine to the state

7) reduce the contract term to end after a period of time specified by the Market Court has

passed

The provisions of Sections 97ndash100 shall apply to determining the sanctions mentioned in sub-

section 1 points 4ndash7 above When determining these sanctions the Market Court may consid-

er the contract to have been concluded on the basis of specific circumstances provided that

the contracting authorityentity has especially commenced the implementation of the contract

The ineffectiveness sanctions infringement fine and reduction of contract terms may only be

issued in contracts exceeding the EU thresholds referred to in Section 12 However an ineffec-tiveness sanction cannot be imposed in a service contract in accordance with Annex B

Only a compensatory fee can be imposed in a contract referred to in Section 68(2) of this Act

40

Section 97

Compensation

Provision for compensation may be made if the harm caused to the contracting authori-

tyentity rights of third parties state security and the public interest by the measure defined

in Section 96(1)(1ndash3) is considered to outweigh the benefits or if the petition has been initiat-

ed following the conclusion of the contract With respect to setting the amount of the compen-

satory fee account shall be taken of the nature of the infringement or omission by the con-

tracting authorityentity the value of the contract in question and the costs and damages in-

curred by the petitioner The Market Court may however decide not to prove for compensa-

tion if the contracting authorityentity has refrained from implementing the contract during the proceedings in the Market Court

Without a specific reason the amount of compensation shall not exceed 10 percent of the val-

ue of the contract

Section 98

Ineffectiveness

The Market Court may declare a contract ineffective if

1) the contracting authorityentity has made a direct award of contract without the basis re-ferred to in this Act and the procedures referred to in Section 81

2) the contracting authorityentity has concluded the contract although there is an obligation in the contract to observe a standstill period

3) the contracting authorityentity has concluded the contract contrary to Section 92 although

the procurement case has been submitted to the Market Court for a decision

In addition a requirement in the situation referred to in subsection 1 points 2 and 3 above is

that the contracting authorityentity has made another infringement contrary to this Act which has affected the chances of the appellant to win the contract

If the contracting authorityentity has concluded the contract in a competition based on the

framework agreement on the basis of Section 80 without observing the standstill period and if

a breach has been committed in the competition in respect of Section 27(2 or 3) such that this

has affected the chances of the appellant to win the contract the Market Court may declare the contract ineffective

The Market Court shall decide to which contractual obligations ineffectiveness shall apply Inef-

fectiveness shall apply only to unfulfilled contractual obligations

Section 99

Non-imposition of ineffectiveness

In the situations referred to in Section 98 above the Market Court may decide not to impose

ineffectiveness for compelling reasons related to the public interest or state security Economic

interests which are directly related to the contract may be deemed compelling only if ineffec-tiveness of the contract would exceptionally have inequitable consequences

The Market Court may not impose ineffectiveness if it would result in serious endangerment of

the implementation of a defence and security project essentially important with respect to

state security

Section 100

41

Infringement fines and reduction of the contract term

The Market Court may order a contracting authorityentity to pay the state an infringement

fine if

1) the Market Court has declared the contract ineffective

2) the contracting authorityentity has concluded the contract although there is an obligation in the contract to observe a standstill period

3) the contracting authorityentity has concluded the contract contrary to Section 92 although the procurement case has been submitted to the Market Court for a decision or

4) the Market Court has decided not to declare the contract ineffective for compelling reasons related to the public interest or state security in accordance with Section 99

In the situation referred to in subsection 1 point 4 above the Market Court may in addition to

or instead of imposing a sanction reduce the contract term so that it ends after a period of time specified by the Court

The Market Court may order a contracting authorityentity to pay the state an infringement

fine or reduce the contract term so that it ends after a period of time specified by the Court

this applies to service contracts referred to in Annex B of this Act the value of which exceeds

the EU threshold as defined in Section 12 if the contracting authorityentity

1) has made a direct award of contract without the basis referred to in this Act and the proce-dures referred to in Section 81 not having been complied with in the direct award

2) has concluded the contract although there is an obligation in the contract to observe the standstill period

3) has concluded the contract contrary to Section 92 although the procurement case has been submitted to the Market Court for a decision or

4) has concluded the contract in a competition based on a framework agreement on the basis

of Section 80 without observing the standstill period and if a breach has been committed in the

competition in respect of Section 27(2 or 3) such that this has affected the chances of the ap-pellant to win the contract

In addition a requirement in the situation referred to in subsection 3 points 2 and 3 above is

that the contracting authorityentity has made another infringement contrary to this Act which

has affected the chances of the appellant to win the contract

With respect to issuing a sanction the Market Court shall take into account the nature of the

mistake or omission by the contracting authorityentity and the value of the contract in ques-

tion The sanction shall not exceed 10 percent of the value of the contract

Section 101

Allocation of sanctions and cumulative effect

If one contracting authorityentity has been responsible for the contracting procedure on be-

half of the other contracting authorities the obligation to compensate for legal costs can be

placed on the contracting authorityentity that acted on behalf of the other contracting authori-

ties

With respect to the sanctions referred to in this Act the Market Court shall take into considera-

tion that the cumulative effect may not become unreasonable for the contracting authori-

tyentity or its contracting party

42

Section 102

Conditional fine

The Market Court may impose a conditional fine in order to underline the importance of com-

plying with the prohibitions or obligations referred to in this Act The provisions of the Act on

Conditional Fines (11131990) shall apply to the imposing of and sentencing to the payment of

conditional fines

If one contracting authorityentity has been responsible for the contracting procedure on be-

half of the other contracting authorities the obligation to compensate for costs can be placed

on the contracting authorityentity that acted on behalf of the other contracting authorities

Section 103

Notification of the Market Courts ruling

The ruling of the Market Court along with the instructions for appeal shall be verifiably notified under the provisions of the Administrative Judicial Procedure Act

With the consent of the appellant and the contracting authorityentity the Market Courts deci-

sion together with the instructions for appeal may be publicised using the electronic contact

information the aforementioned parties have provided to the Market Court

When electronic contact information is used the appellant and the contracting authorityentity

shall be deemed to have been notified of the decision and instructions for appeal on the date

on which the message concerning the matter is available in the recipientsrsquo reception equipment

so that the message can be handled The provisions of Section 77(1) shall apply to electronic

notification

Section 104

Prohibition to appeal

A case that is within the jurisdiction of the Market Court cannot be appealed against under the

provisions of the Local Government Act or the Administrative Judicial Procedure Act

A decision or ruling concerning a contract which has been excluded from the scope of applica-

tion of this Act on the basis of Section 6(2) and Sections 78 or 13 may not be appealed under

the Administrative Judicial Procedure Act or the Local Government Act The subcontractor may

not under the Administrative Judicial Procedure Act or the Local Government Act appeal the

decision or action taken by the contracting authorityentity concerning the subcontract

Section 105

Appeals against the decisions of the Market Court

Appeals against a ruling of the Market Court can be lodged in the Supreme Administrative Court in accordance with the Administrative Judicial Procedure Act

As referred to in Section 93(1) an appeal cannot be lodged against the ruling by the Market

Court in the Supreme Administrative Court A ruling by the Market Court does not prevent the

case from being reconsidered by the Market Court if the grounds for the previous ruling have

changed

If the Market Court has ruled that it will not grant the processing authorisation referred to in

Section 88(3) then an appeal against this ruling can only be lodged if the Supreme Adminis-

trative Court grants a leave to appeal

43

Section 106

Application of the Administrative Judicial Procedure Act

The Administrative Judicial Procedure Act shall apply to appeals unless otherwise provided by this Act

Section 107

Implementation of rulings

A ruling of the Market Court has to be observed notwithstanding any appeal unless the Su-

preme Administrative Court orders otherwise The ruling of the Market Court issuing the sanc-

tion referred to in Section 96(1)(4ndash7) may only be implemented on the basis of a final ruling

The implementation of a ruling concerning a sanction shall be supervised by the Legal Register

Centre The Legal Register Centre must be informed of any ruling by the Market Court and

Supreme Administrative Court to issue a sanction

Section 108

Compensation for damages

Those who cause damage to a candidate tenderer or supplier shall be liable to pay compensa-

tion for the damage they have caused while acting in breach of this Act or any regulations based thereon or the European Union law

However when the claim for damages refers to costs incurred as a result of the tendering pro-

cedure the candidate or tenderer is entitled to compensation if it can provide proof of the in-

correct procedure as defined in subsection 1 and that had the procedure been correct it would have had a genuine chance to win the contract

In respect of the cases defined in subsection 1 and 2 a Court of first instance shall be the

competent court in accordance with Chapter 10 of the Code of Judicial Procedure

Chapter 16

Further provisions

Section 109

Disclosure of information

Notwithstanding the provisions concerning confidentiality provided for in the Act on the Open-

ness of Government Activities or in any other act the contracting authorityentity shall supply

statistics and other information concerning the different stages of the contract and performed

contracts to the Finnish authorities and European Union bodies to monitor contracts and ex-

change information on the scale and to the time limit required by European Union law Pursu-

ant to this Act the Ministry of Economic Affairs and Employment has the right to forward in-

formation it has received to the European Union authorities notwithstanding the regulations on confidentiality

The contracting authorityentity shall draw up a written report on each contract and framework

agreement which includes essential information on the contract contract procedure and the

candidates and tenderers who participated as well as on the decisions made in connection with

44

the contract The report and its main content shall be forwarded on request to the European

Commission A separate report is not required if corresponding information can be found in the

contract decision or other documents

To document the course of the realised contract procedure the contracting authorityentity

shall implement necessary measures in an electronic format

More specific rules are laid down in a Government decree on the obligation to provide statistics

and the responsibility of the contracting authorityentity to draw up reports on contract proce-

dures and contract decisions as referred to in subsection 1 which are to be forwarded to the

European Union bodies

Section 110

Entry into force and transitional provisions

This Act enters into force on 1 January 2012

If a contract procedure is started before the entry into force of this Act the provisions that

were in force at the time when this Act entered into force shall be applied The contract proce-

dure shall be deemed to have commenced when the contract notice was published A contract

which does not require the publication of the contract notice shall be deemed to have com-

menced when the invitation to tender or a meeting is sent or negotiations with suppliers begin

Measures necessary for the implementation of this Act may be undertaken before the Actrsquos

entry into force

45

ANNEX A

Primary services

Group No

Matter CPV Reference No

1 Maintenance and repair services 50000000-5 50100000-6-50884000-4 (except 50310000-1-50324200-4 and 50116510-9 50190000-3 50229000-6 50243000-0) and 51000000-9-51900000-1

2 Services related to international military assistance

75211300-1

3 Defence services military defence services and civil defence services

75220000-4 75221000-1 75222000-8

4 Investigation and security services 79700000-1-79720000-7

5 Land transport services 60000000-8 60100000-9-60183000-4 (except 60160000-7 60161000-4) and 64120000-3-64121200-2

6 Air transport services for passengers and freight except transport of mail

60400000-2 60410000-5-60424120-3 (except 60411000-2 60421000-5) 60440000-4-60445000-9 and 60500000-3

7 Transport of mail by land and by air 60160000-7 60161000-4 60411000-2 60421000-5

8 Railway transport services 60200000-0-60220000-6

9 Sea transport services 60600000-4-60653000-0 and 63727000-1-63727200-3

10 Support and auxiliary transport services 63100000-0-63111000-0 63120000-6-63121100-4 63122000-0 63512000-1 and 63520000-0-6370000-6

11 Telecommunications services 64200000-8-64228200-2 72318000-7 and 72700000-7-72720000-3

12 Financial services insurance services 66500000-5-66720000-3

13 Data-processing and related services 50310000-1-50324200-4 72000000-5-72920000-5 (except 72318000-7 and 72700000-7-72720000-3) 79342410-4 9342410-4

14 Research and development services(sup1) and evaluation tests

73000000-2-73436000-7

15 Accounting auditing and bookkeeping services

79210000-9-79212500-8

16 Management consulting(sup2) and related services

73200000-4-73220000-0 79400000-8-79421200-3 and 79342000-3 79342100-4 79342300-6 79342320-2 79342321-9 79910000-6 79991000-7 98362000-8

17 Architectural services engineering services and integrated engineering services urban planning and landscape architectural services related scientific and technical consulting services technical testing and analysis services

71000000-8-71900000-7(except 71550000-8) and 79994000-8

18 Building cleaning services and building and property management services

70300000-4-70340000-0 and 90900000-6-90924000-3

19 Sewage and refuse disposal services 90400000-1 to 90743200-9 (except 90712200-3)

46

sanitation and similar services 90910000-9-90920000-2 and 50190000-3 50229000-6 50243000-0

20 Training and simulation services in the fields of defence and security

80330000-6 80600000-0 80610000-3 80620000-6 80630000-9 80640000-2 80650000-5 80660000-8

(sup1) Except the research and development services referred to in Section 13(2)(5) (sup2) Except arbitration and conciliation services ANNEX B Secondary services

Group No

Matter CPV Reference No

21 Hotel and restaurant services 55100000-1-55524000-9 and 98340000-8-98341100-6

22 Support and auxiliary transport services 63000000-9-63734000-3 (except 63711200-8 63712700-0 63712710-3) 6372700-1-63727200-3 and 98361000-1

23 Legal services 79100000-5-79140000-7

24 Employment and personnel recruitment services(sup1)

79600000-0-79635000-4 (except 79611000-0 79632000-3 79633000-0) and 98500000-8-98514000-9

25 Health and social services 79611000-085000000-9 and -85323000-9 (except 85321000-5 and 85322000-2)

26 Other services

(sup1) Except employment contracts

47

ANNEX C NACEsup1ordm

Main category F CONSTRUCTION CPV code

2-digit level

3-digit level

4-digit level

Description Comments

45 Construction This two-digit level includes the following construction of new buildings and works reconstruction and common repairs

45000000

451 Site preparation

45100000

4511 Demolition and wreck-ing of buildings earth moving

This four-digit level includes the following - demolition of buildings and other structures - clearing of building sites and earth moving site excavation landfill and levelling trench dig-ging quarrying blasting etc - site preparation for mining

- overburden removal and other development and prepa-ration of mines and mining sites

This four-digit level also includes - building site underdrainage - drainage of agricultural or forestry land

45110000

4512 Test drilling This four-digit level includes the following - test drilling test boring and sampling for construction geophysical geological or similar purposes This four-digit level excludes the following - drilling of oil or gas wells comp 1120 - water well drilling 4525

45120000

sup1deg Council regulation (EEC) No 303790 (Official Journal of the European Union 293 24 October 1990 p 1) on the statistical classification of economic activities in the European Community issued on 9 October 1990 regulation as amended by Commission Regulation (EEC) No 76193 (Official Journal of the European Union L 83 3 April 1993 p 1) If there are differences of opinion between CPV and NACE NACE nomenclature shall apply

48

- shaft sinking comp 4525 - oil and gas field exploration geophysical geological and seismic surveying comp 7420

452 Building complete constructions or parts thereof

45200000

4521 Building work This four-digit level includes the following - Construction of all types of buildings - civil engineering and hydraulic engineering works - building of bridges including those for elevated highways metro tunnels - construction of long-distance pipelines communication cables and long-distance networks for power lines - construction of long-distance pipelines telecommunication ca-bles and municipal network power lines related installation work - on-site assembly and erection of pre-fabricated constructions This four-digit level excludes the following - services related to oil and gas extraction comp 1120 - erection of complete prefabricat-ed constructions from self-manufactured parts not of con-crete comp 20 26 28 - construction work other than buildings for stadiums swimming pools gymnasiums tennis courts golf courses and other sports installations comp 4523 building installation comp 453 - building completion comp 454 - architectural and engineering services comp 7420 - project management for construction comp 7420

45210000 Except 45213316 45220000 45231000 45232000

4522 Erection and covering of roofs

This four-digit level includes the following - erection of roofs - roof covering - waterproofing

45261000

49

4523 Construction of highways streets airports and sports equipment

This four-digit level includes the following - construction of highways streets other vehicular and pedestrian ways - construction of railways - construction of airfield runways - construction work other than build-ings for stadiums swimming pools gymnasiums tennis courts golf courses and other sports installations - painting of markings on road surfaces and car parks This four-digit level excludes the following - preliminary earth moving comp 4511

45212212 and DA03 45230000 except 45231000 45232000 45234115

4524 Construction of water projects

This four-digit level includes the following building works - construction of waterways harbour and river works marinas locks etc - construction of dams and breakwaters - dredging - subsurface work

45240000

4525 Other construction work

This four-digit level includes the following - construction activities specialising in one aspect common to different kinds of structures requiring specialised skill or equipment - construction of foundations including pile driving - water well drilling and construction shaft sinking - erection of non-self-manufactured steel frame elements - steel bending - bricklaying and stone setting - erecting and dismantling of scaffolds and work platforms including rental of scaffolds and work platforms - erection of chimneys and industrial ovens This four-digit level excludes the following - rental of scaffolds without erecting and dismantling comp 7132

45250000 45262000

453 Building installation 45300000

4531 Installation of electri-cal wiring and fittings

This four-digit level includes the installation in buildings or other

45213316 45310000

50

construction projects of - electrical wiring and fittings - telecommunications systems - electrical heating systems - residential antennas - fire alarms - burglar alarm systems - lifts and escalators - lightning conductors etc

Except 45316000

4532 Insulation work This four-digit level includes the following - installation in buildings or other construction projects of thermal sound or vibration insulation This four-digit level excludes the following - waterproofing comp 4522

45320000

4533 Plumbing This four-digit level includes the installation in buildings or other construction projects of the following - plumbing and sanitary equipment and fittings - gas fittings - heating ventilation refrigeration or air-conditioning equipment and ducts - sprinkler systems This four-digit level excludes the following - installation of electrical heating systems comp 4531

45330000

4534 Other installation work

This four-digit level includes the fol-lowing - installation or other construction of illumination and signalling systems for roads railways airports and harbours - installation in buildings or other construction projects of fittings and fixtures

45234115 45316000 45340000

454 Building completion 45400000

4541 Plastering This four-digit level includes the following - application in building or other construction projects of interior and exterior plaster or stucco and other similar lathing materials

45410000

4542 Joinery installation This four-digit level includes the following - installation of non-self-manufactured doors windows door

45420000

51

and window frames fitted kitchens staircases and shop fittings made of wood or other materials - completion of interiors such as ceilings wooden wall coverings wall paneling installation of movable partitions etc This four-digit level excludes the following - laying of parquet and other wooden floor coverings comp 4543

52

4543 Floor covering and wall upholstery

This four-digit level includes the following - covering or tiling of buildings or other structures using - ceramic concrete or stone wall or floor tiles or stones - parquet or other wooden floor covering - wall-to-wall carpeting or linoleum also rubber or plastic floor covering - wall or floor covering made of mosaic marble granite or slate - wallpaper

45430000

4544 Painting and glazing This four-digit level includes the following - interior and exterior painting of buildings - exterior painting of other structures - installation of mirrors glass etc This four-digit level excludes the following - installation of windows comp 4542

45440000

4545 Other building completion

This four-digit level includes the following - construction of private swimming pools - cleaning the exterior surfaces of buildings using steam sandblasting or other similar method - other building completion work not classified elsewhere This four-digit level excludes the following - cleaning of buildings and other structures comp 7470

45212212 and DA03 45450000

455 Rental of construction or dismantling equip-ment with operators

45500000

4550 Rental of construction or dismantling equip-ment with operators

This four-digit level excludes the following - rental of construction or dismantling machines and equipment without operators comp 7132

45500000

28

part or parts of the contract it plans to award to third parties as subcontracts in order to fulfil

the requirement of the contracting authorityentity The maximum amount defined by the con-tracting authorityentity shall not exceed 30 percent of the value of the contract or

3) invite bids on a part or parts of the subcontracts which it plans to award to third parties in

addition to the subcontracts mentioned in point 2 above In that case the contracting authori-

tyentity shall require that the tenderer specify in its tender those parts of the contract which it

plans to award as subcontracts to third parties in addition to the subcontracts mentioned in point 2 above

In addition to the provisions of subsections 2 and 3 the contracting authorityentity may re-

quire that the tenderer report any changes occurring at the subcontractor level during the im-

plementation of the contract

The contracting authorityentity shall set the maximum and minimum amount as defined in

subsection 3 point 2 having regard to the object and value of the contract and the character of the industry sector in question the competitive situation and technical capacity

The tenderer has the right to award more subcontracts to third parties than required by the contracting authorityentity in accordance with this Section

Section 63

Rejecting a subcontractor

The contracting authorityentity may specify requirements concerning the subcontractors fi-

nancial and economic situation technical capacity and professional competence information

security security of supply or quality These as well as other requirements concerning the

suitability of the subcontractor shall be stated in the contract notice These requirements shall

be equitable and non-discriminatory and conform to the requirements set in the invitation to tender concerning the suitability of the candidate or tenderer

The contracting authorityentity may decide to reject a subcontractor selected by the tenderer

during the contract procedure or the implementation of the contract if the subcontractor does

not meet the requirements set in the contract notice concerning the suitability of the subcon-

tractor or the exclusion criterion laid down in Section 47 or Section 48 applies to the subcon-

tractor The contracting authorityentity shall justify the rejection in writing to the tenderer

Section 64

Implementation of subcontracts

A tenderer selected as a contracting party shall act openly and treat any and all subcontractors

equally and in a non-discriminatory manner

A tenderer selected as a contracting party shall provide for the publication a subcontract notice

concerning those subcontracts to which the bidding obligation laid down in Section 62(3) ap-

plies and whose estimated value without value added tax exceeds the EU thresholds men-

tioned in Section 12 The notice obligation shall not apply to a subcontract which fulfills the

requirement set for a direct contract award mentioned in Sections 22ndash23 The provisions of

Sections 14ndash16 shall apply to the calculation of the estimated value of subcontracts

The tenderer selected as the contracting party shall specify in the subcontract notice the crite-

ria which the tenderer will apply in assessing the suitability of the subcontractors and in select-

ing them These criteria shall be equitable and non-discriminatory and conform to the criteria

that the contracting authorityentity applies in assessing the suitability of the tenderers The

requirements shall be related to the object of the subcontract and be proportional to the scope

of the subcontract

A tenderer selected as a contracting party may publish a subcontract notice also concerning

those subcontracts which meet the criteria for the subcontracts referred to in Sections 22ndash23

29

Section 65

Exemption from an obligation related to subcontracting

A tenderer selected as a contracting party may not be required to enter into a subcontract if it

indicates in a manner satisfactory to the contracting authorityentity that none of the subcon-

tractors that participated in the competition or none of their tenders fulfil the requirements

set in the subcontract notice and therefore the tenderer selected as a contracting party could

not fulfil the contract requirements

Section 66

Framework agreements

The provisions of Section 62 shall not apply to subcontracts awarded by the tenderer selected

as a contracting party if the framework agreement was put out to tender in accordance with

the provisions of Section 64

Subcontracts based on a framework agreement shall be awarded in accordance with the condi-

tions confirmed in the framework agreement and concluded between the original participants

to the framework agreement Conditions analogous to those of the framework agreement shall be complied with in subcontracting agreements

The framework agreement may not be used in such a way as to distort restrict or prevent

competition

The term of the framework agreement may not exceed seven years In exceptional cases the

framework agreement may be longer in duration when duly justified by the expected life cycle

of the supplies equipment and systems delivered and the technical problems that might re-

sult from the change of supplier

Section 67

The responsibility of the tenderer for carrying out the contract

The requirements set by the contracting authorityentity on the basis of this Chapter and the

notices issued by the tenderers based on them do not limit the responsibility of the tenderer

selected as a contracting party to carry out the contract PART III

National procedures

Chapter 10 Tendering procedures for contracts below the EU threshold for second-

ary service contracts referred to in Annex B and for certain other contracts

Section 68

Contract award procedures

The contract award procedures specified in this Chapter may be used for service contracts

public works contracts and the service contracts referred to in Annex A which are below the EU

threshold referred to in Section 12(1) but above the national threshold referred to in Section

13(1) and for secondary service contracts referred to in Annex B which are above the national

threshold referred to in Section 13(1)

The procedures laid down in this Chapter may also be used for defence contracts referred to in

Section 5 when the value of the defence contracts exceed the national threshold as referred to

in Section 13 provided that the criteria set in Article 346(1)(b) of TFEU are fulfilled

30

Section 69

General rules of procedure

The contracting authorityentity shall aim to take advantage of the prevailing competitive con-

ditions and award the contract primarily through competitive bidding A sufficient number of

tenders shall be requested in terms of the scope and subject matter of the contract to ensure

competition

A public notice shall be issued however the publication obligation does not apply in the case

of contracts that fulfil the criteria set in Article 346(1)(b) of TFEU

The contracting authorityentity may request a tender directly from one supplier if competitive

bidding cannot be carried out for reasons justified on the basis of national defence state secu-rity or security of supply

The contracting authorityentity may also request a tender directly from one supplier if

1) no tenders or no suitable tenders were received in the competitive bidding carried out

previously a further requirement is that the conditions of the original invitation to ten-

der are not fundamentally changed

2) for technical reasons or for reasons connected with the protection of exclusive rights the contract may be awarded only to a particular supplier

3) for reasons of urgency brought about by a crisis it is not possible to carry out competi-tive bidding

4) execution of the contract is absolutely necessary and competitive bidding cannot be

carried out for reasons of extreme urgency brought about by events unforeseeable by

and independent of the contracting authorityentity

5) the product to be acquired are manufactured purely for scientific or research purposes

and it is not a matter of establishing commercial viability of the products or to recover research and development costs

6) the object of the contract is a research and development service that has not been ex-cluded from the scope of this Act on the basis of Section 8

7) the contract is necessary in order to determine whether the final result of the research

and development service is suitable to be used as intended by the contracting authori-tyentity

8) the object of the contract consists of supplies quoted and purchased on a commodity market

9) the supplies are purchased on particularly advantageous terms from either a supplier

winding up its business activities or from the receivers of a bankruptcy or liquidators in

insolvency proceedings an arrangement with creditors or a similar procedure

10) the object of the contract is a second-hand product

11) the object of the contract is based on a supplementary contract right incorporated into

the contract

12) the object of the contract is additional deliveries by the original supplier which are in-

tended either as a partial replacement of existing supplies or installations or as the ex-

tension of existing supplies or installations and a change of supplier would result in in-

compatibility or disproportionate technical difficulties in operation and maintenance

13) the object of the contract is additional works or services not included in the project ini-

tially but which have through unforeseen circumstances become necessary for the per-

formance of the works or services as originally described

31

Section 70

Negotiations with tenderers and specifying the tender and the invitation to tender

The contracting authorityentity may discuss all aspects of the contract with the tenderers dur-

ing the negotiation provided that the negotiations do not result in changing constituent ele-

ments in the invitation to tender in a discriminating manner or in a manner which distorts

competition

The purpose of the negotiations shall be to select the best tender in accordance with Section

73(2) or to determine one or more alternative solutions for contract implementation before

sending the final invitation to tender The dialogue may take place in successive stages in or-

der to reduce the number of tenders or solutions to be discussed during the dialogue by apply-

ing the comparison criteria indicated in the invitation to tender or project description

In competitive bidding the requirement for negotiations shall be that the negotiations and the

criteria to be complied with during the negotiations have been stated in the invitation to tender

or the project description

The contracting authorityentity shall ensure equal treatment of all candidates and tenderers

during the negotiations and shall not provide information in a manner that may compromise

the equal treatment of the participants in competitive bidding

Section 71

Invitation to tender

The invitation to tender shall be submitted in writing and drawn up to be sufficiently clear in

order to enable submission of commensurate and mutually comparable tenders The invitation

to tender shall contain all information that is particularly important in terms of the contracting

procedure and submitting the tender

The invitation to tender shall include the award criterion and where the criterion for the award is that of the economically most advantageous tender the comparison criteria and the ranking thereof The invitation to tender shall indicate a reasonable time allotted for the tenderers to submit a tender taking into consideration the scope and subject matter of the contract

The contracting authorityentity may charge a reasonable fee for the invitation-to-tender doc-

uments to recover the costs arising from the exceptionally extensive scope of the documenta-

tion the materials related thereto or other similar factors

Section 72

Drawing up the invitation to tender and submitting the tender

The invitation to tender and the tenders based thereon shall be drawn up in writing They may be executed orally only in exceptional circumstances if the written procedure is justifiably not appropriate If the invitation to tender or the tenders are not drawn up in writing a record shall be kept of the negotiations held with the tenderers the record shall indicate the infor-mation impacting the course of the procedure and the position of the tenderers

Section 73

Selection of a tender and a tenderer rejecting a tender

The contracting authorityentity may exclude from the competitive bidding any supplier which

taking into consideration the scope and object of the contract and other criteria does not pos-

sess the qualifications to carry out the contract The contracting authorityentity may exclude

32

from the competitive bidding any tender submitted by a tenderer who does not possess the

qualifications to carry out the contract when taking into consideration the scope and object of

the contract and other criteria

The contracting authorityentity shall award the contract to the tenderer whose tender has the

lowest price or complies with the comparison criteria set in the invitation to tender and is eco-

nomically the most advantageous

The contracting authorityentity may reject a tender which does not fulfil the essential condi-

tions set in the invitation to tender or has an abnormally low price in terms of the subject mat-

ter and scope of the contract Before it may reject a tender the contracting authorityentity

shall request in writing details of the constituent elements of a tender that is abnormally low in

price

PART IV

General provisions on decisions concerning contract awards conclusion of contracts

procurement rectification public access to the contract documents and further provi-sions

Chapter 11

Decisions concerning the award of contracts and notification thereof

Section 74

Decision concerning the award

The contracting authorityentity shall provide in writing the decisions affecting the position of

the candidates and tenderers and the results of the tendering procedure including the grounds for the outcome of the procedure

The decision or the related documentation shall state the factors that fundamentally affected

the outcome including the grounds for rejecting the candidate tenderer or tender and the

grounds on which the accepted contracts were compared As regards a decision concerning

asking for bids for a contract based on a framework arrangement stating the facts showing

that the selection and award criteria have been applied as required under Section 27 shall

suffice If the standstill period referred to in Section 79 applies to the contract the decision or

the related documents shall also state the period of time after which the contract may be awarded

The contracting authorityentity is not required to make a decision referred to in this Section

concerning a contract for the additional supplies referred to in Section 23 or Section 69(4)(12)

and additional service or contract referred to in (13) or the temporary arrangements for a con-tract referred to in Section 95

In contracts based on framework agreements the contracting authorityentity is not required to make the decision referred to in this Section if

1) the contract is awarded in accordance with the conditions laid down in the framework

agreement without asking for bids or

2) the competitive bidding is based on a framework agreement when the value of the contract

does not exceed the EU threshold

33

Section 75

Suspending the contract award procedure

The contract award procedure can be suspended only for verifiable and justifiable reason

The provisions of Section 74 concerning contract ruling shall apply to the suspension of the

contract award procedure

Section 76

Appeal instructions and instructions for request for rectification

Instructions for appeal shall accompany the decisions made by the contracting authori-

tyentity explaining how to refer a case to the Market Court for consideration contact infor-

mation of the contracting authorityentity for the notice referred to in Section 90 and instruc-

tions for seeking rectification (petition instructions) explaining how the candidate or tenderer can have the case submitted for reconsideration through procurement rectification

With regard to the issuing and amending appeal and petition instructions the provisions of

Chapter 3 of the Administrative Judicial Procedure Act (5861996) shall apply in terms of ap-

peals and the provisions of Chapter 7 of the Administrative Procedure Act (4342003) shall

apply in terms of petition instructions

Section 77

Notification of the decision concerning the contract award

The decision of the contracting authorityentity including the grounds for the decision and the

appeal and petition instructions shall be submitted in writing to the parties concerned The de-

cision including the aforementioned documents shall be submitted using the electronic con-

tact information which the candidate or tenderer has given to the contracting authorityentity

When using the electronic contact information the candidate and tenderer shall be considered

to have received notice of the decision and the accompanying documents on the date on

which the electronic message containing the aforementioned documents is available in the re-

cipients reception equipment such that the message can be handled Such a point in time shall

mean the date on which the message was sent unless a reliable explanation concerning the

malfunction of telecommunications links or another analogous reason because of which the

electronic message reached the recipient later When electronic notification is used the con-

tracting authorityentity shall include in the message a separate note concerning the date

when the message was sent

The decision including the grounds for it and the appeal and petition instructions may also be

sent via regular mail under the Administrative Procedure Act Candidates and tenderers shall

be considered to have received notification of the decision and the accompanying documents

on the seventh day from the date on which they were sent unless the candidate or tenderer

proves that the notification occurred at a later date

Notification on the decision of the contracting authorityentity shall be issued without undue

delay at the latest 15 days from the date on which the contracting authorityentity receives a written request concerning notification on the decision that was made

34

Chapter 12

Public contract

Section 78

Concluding a public contract

Having made the decision to award a public contract the contracting authorityentity shall

conclude the contract The contract is concluded upon signing a written agreement

Section 79

Standstill period

In the case of a contract above the EU threshold referred to Section 12 above the contract can

be concluded at the earliest 21 days from the date when the candidate or tenderer received or is considered to have received the decision and instructions for appeal (standstill period)

A standstill period shall not be applied in direct contract awards

The provisions of Section 92 shall apply to the effect of an appeal on concluding a contract

Section 80

Exceptions to the compliance with the standstill period

The standstill period need not be upheld if

1) the contract concerns a procurement carried out on the basis of the framework agreement in accordance with Section 27

2) the contract is awarded to the tenderer who submitted the only acceptable tender and no

other tenderers or candidates remain in the competitive bidding whose position would be af-

fected by the selection of a co-contractor

3) the contract concerns a procurement referred to in Section 68(2)

Section 81

Notification of direct awards and conclusion of public contracts

In direct awards exceeding the EU threshold the contracting authorityentity may after hav-

ing made the award decision send a notice for publication concerning the direct award of con-

tract before concluding the contract In that case the contract can be concluded at the earli-est 14 days after the publication of the notice in the Official Journal of the European Union

Chapter 13

Procurement rectification

Section 82

Rectification of a procurement

The contracting authorityentity may remove an incorrect decision or annul an award decision

made during the contracting procedure concerning the legal status of the candidates or ten-

35

derers and make a new decision (procurement rectification) if the award decision or other deci-

sion reached during the contracting procedure is based on an error that occurred in the appli-cation of the law

Amending an award decision or other decision does not require the consent of the party con-

cerned However an award decision or other decision cannot be amended through procure-

ment rectification if the contract has been concluded

Section 83

Initiation of procurement rectification

The contracting authorityentity may take up a procurement rectification on its own initiative

or in response to a demand of the party in question The contracting authorityentity shall noti-fy the concerned parties immediately of the initiation of a procurement rectification

A subcontractor does not have the status of a concerned party referred to in subsection 1 of this section in terms of the matter concerning the contract

The concerned party shall present the demand within 14 days after receipt of the notification

of the award decision or other decision made by the contracting authorityentity during the

contracting procedure The contracting authorityentity itself may amend the award decision or

other decision no later than 60 days after the date the decision concerning the procurement rectification is made

Appealing the case to the Market Court does not prevent a procurement rectification or its pro-

cessing A procurement rectification may also apply to a decision of the contracting authori-

tyentity that has become legally binding if the case has not been submitted to the Market

Court for ruling

Section 84

Effect of the processing of procurement rectification on the proceedings in the Mar-ket Court

The initiation and processing of a procurement rectification do not affect the time limit within

which the concerned party has the right pursuant to this Act to submit an appeal against the

decision to the Market Court

If the award decision or other decision that was reached during the contract award procedure

is to be amended and has been appealed against before the Market Court the Market Court

shall be notified of the processing of the case through procurement rectification and informed

of the decision reached In processing a procurement rectification the contracting authori-

tyentity may prohibit the enforcement of the award decision or other decision or order it to be

suspended The Market Court shall be notified of a prohibition or suspension of enforcement if an appeal has been lodged against the decision in the Market Court

If the contracting authorityentity amends its award decision or other decision by means of a

procurement rectification such that as a result the appellant to the Market Court no longer has

the need for judicial relief or the need for a justified decision the Market Court may decline to

process such a case without giving a ruling on the principal claim

Section 85

The application of procurement rectification to other contracts

A procurement rectification can also be applied to amend an award decision or other decision

made by the contracting authorityentity during the contracting procedure to which this Act

36

shall not apply pursuant to Section 6(2) and Sections 7 8 or 13 A decision made on account

of such a contract rectification may not be appealed against in the Market Court or under the Administrative Judicial Procedure Act or Local Government (Act 3651995)

Chapter 14

Public access to the contract documents

Section 86

Application of the provisions concerning public access to the contract documents

The Act on the Openness of Government Activities (6211999) shall apply to public access to

the documents of the contracting authorityentity and the fees charged for the documents if

the contracting authorityentity is the authority referred to in Section 4 of the aforementioned

Act or if it is obliged to comply with that Act on the basis of a provision contained elsewhere in the Act

In terms of the right of parties other than the participants in the competitive bidding conducted

by the contracting authorityentity referred to in subsection 1 to have access to the docu-

ments drawn up and received for processing of the tender and the confidentiality obligation of

those employed by the contracting authorityentity the provisions of the Act on the Openness

of Government Activities shall apply to the right of concerned parties to have access to the

document to how public access to the document is determined and to the processing and resolving of the matter concerning access to information

The decision of the contracting authorityentity which has resolved the matter concerning ac-

cess to information can be appealed in accordance with the provisions of Section 33 of the Act

on the Openness of Government Activities The Supreme Administrative Court in whose judicial

district the contracting authorityentity is located is the competent Supreme Administrative

Court for considering the appeal submitted on the basis of a decision made by a party other

than the contracting authorityentity acting as an authority

Chapter 15

Appealing and the implications thereof

Section 87

Parties entitled to appeal

A concerned party may appeal the matter to the Market Court by issuing a complaint A sub-

contractor does not have the position of an interested party referred to in subsection 1 of this Section in terms of the matter concerning the contract

In matters concerning control procedures of the European Union the Ministry of Economic Af-

fairs and Employment may also refer the matter to the Market Court for consideration

Section 88

Object of the appeal

An appeal may be lodged before the Market Court against an award decision of the contracting

authorityentity referred to in this Act or other decision reached by the contracting authori-

tyentity during the contracting procedure which affects the status of the candidate or the ten-derer

37

An appeal may not be lodged before the Market Court against an award decision or other deci-

sion of the contracting authorityentity which concerns only the preparation of the contracting

procedure An appeal may not be lodged against a decision or other measure taken by the

supplier selected as a contracting party concerning a subcontracting agreement or an award

decision or determination made by the contracting authorityentity during the implementation of the contract

A contract based on a framework agreement referred to in Section 27 above and a contract

referred to in Section 68(2) may not be appealed unless a processing authorisation is issued by the Market Court The authorisation shall be issued if

1) the processing of the case is important in terms of applying the Act in other similar matters

or

2) there is a cogent reason for it related to the procedures of the contracting authorityentity

Section 89

Time period for appeal

Unless otherwise prescribed in this Section an appeal must be lodged in writing within 14 days

from the date when the candidate or tenderer received the notice concerning the contract with the instructions for appeal

If the contracting authorityentity has concluded a public contract after the contract decision

was issued on the basis of Section 80 point 1 without complying with the standstill period

the appeal shall be lodged within 30 days from the date when the tenderer has received notice

of the decision with the instructions for appeal

An appeal before the Market Court shall be lodged within six months of the date of the contract

decision provided that the candidate or tenderer has received notice of the contract decision

and the contract decision or appeal instructions were materially deficient or the appeal instruc-tions have been missing altogether

If the contracting authorityentity has with regard to a contract above the EU threshold re-

ferred to in Section 12 above delivered a notice regarding a direct award of contract for publi-

cation in the Official journal of the European Union the complaint must be lodged within 14 days from the publication of the notice

If the notice referred to in subsection 4 has not been published the appeal concerning a direct award of contract shall be lodged

1) within 30 days of the date of publication of a contract-award notice has been published in

the Official Journal of the European Union or

2) within six months from the conclusion of the contract at the latest

Section 90

Notification of appeal to the contracting authorityentity and the list of procurement

cases

The appellant in a contract-related matter must notify the contracting authorityentity in writ-ing of referring the case to the Market Court for consideration

The notification must be delivered to the contracting authorityentity at the latest when the

complaint concerning the contract is delivered to the Market Court The notification shall be delivered to the address provided by the contracting authorityentity

38

The Market Court shall maintain and publish a list which is as comprehensive and up-to-date

as possible of contract-related matters pending at the Market Court

Section 91

The contracting authorityentity as the opponent and compensation of legal costs

In the proceedings regarding contract-related matters the contracting authorityentity shall be considered the opponent of the party or agency lodging the appeal

The provisions of Section 74 subsections 1 and 2 of the Administrative Judicial Procedure Act shall apply to the compensation of legal costs regarding contract-related matters

The provisions of Section 74 subsections 1 and 2 of the administrative Judicial Procedure Act

concerning public authorities or other public parties shall apply to the decision concerning the

liability to provide compensation for the legal costs of the opponent If one contracting authori-

tyentity has been responsible for the contracting procedure on behalf of the other contracting

authorities the obligation regarding compensation of legal costs may be placed on the con-

tracting authorityentity which acted on behalf of the other contracting authorities

Section 92

The effect of the appeal on concluding the contract

In case of a contract where the standstill period or the time limit referred to in section 81 must

be observed the contracting authorityentity may not conclude the contract if the matter has

been brought up for consideration by the Market Court

If the Market Court decides a case concerning enforcement or decides on the principal claim

before the standstill period or the time limit referred to in Section 81 has expired the contract-

ing authorityentity shall observe the standstill period or the time limit referred to in Section

81 until the end of the period notwithstanding the ruling of the Market Court

Section 93

Interim decisions of the Market Court

While the appeal is under consideration the Market Court may prohibit suspend or allow the

implementation of the decision concerning the contract award or order the contracting proce-

dure to be suspended otherwise as an interim measure for the duration of the proceedings in the Market Court

When deciding on the measure referred to in subsection 1 the Market Court shall take into

consideration that the harm caused by the measure to the opponent the rights of third par-

ties the security of the state or the public interest may not outweigh its benefits

However the decision prescribed in subsection 1 of this Section cannot be carried out in the case of a contract referred to in Section 68(2) of this Act

A legally trained member of the Market Court may alone issue a ruling as an interim measure

Section 94

Interim commitment of the contracting authorityentity

While the appeal is under consideration the contracting authorityentity may provide a written

undertaking to the Market Court stating that it will not enforce the decision concerning the contract for as long as the matter is pending in the Market Court

39

If the contracting authorityentity provides the Market Court with the undertaking referred to

in subsection 1 the Market Court will not issue without a specific reason a decision on the

obligation to interim prohibition on implementing the decision to award the contract

Section 95

Temporary organisation of a contract

If an appeal has been lodged against a contract before the Market Court the contracting au-

thorityentity may temporarily organise the contract by ordering it from a supplier who partici-

pated in the contracting procedure or from a previous supplier if the nature of the contract is

such that executing the contract cannot be postponed for the duration of the Market Court pro-ceedings

Temporary contract arrangements must not hinder the execution of the following items by means of a decision of the Market Court

1) the decision of the contracting authorityentity to cancel the contract in full or in part

2) prohibit the contracting authorityentity from applying any erroneous item included in the contract document or otherwise complying with an incorrect procedure or

3) require the contracting authorityentity to rectify its incorrect procedure

Section 96

Sanctions imposed by the Market Court

If during the contract procedure actions have been taken which are against this Act or the provisions based thereon or against European Union legislation the Market Court may

1) cancel the decision of the contracting authorityentity in full or in part

2) prohibit the contracting authorityentity from applying any erroneous item included in the contract document or otherwise complying with an incorrect procedure

3) require the contracting authorityentity to correct its erroneous procedure

4) order the contracting authorityentity to pay a compensatory fee to the party which would

have had a genuine chance to win the bidding competition had the procedure been correct

5) impose an ineffectiveness sanction on the contracting authorityentity

6) order the contracting authorityentity to pay an infringement fine to the state

7) reduce the contract term to end after a period of time specified by the Market Court has

passed

The provisions of Sections 97ndash100 shall apply to determining the sanctions mentioned in sub-

section 1 points 4ndash7 above When determining these sanctions the Market Court may consid-

er the contract to have been concluded on the basis of specific circumstances provided that

the contracting authorityentity has especially commenced the implementation of the contract

The ineffectiveness sanctions infringement fine and reduction of contract terms may only be

issued in contracts exceeding the EU thresholds referred to in Section 12 However an ineffec-tiveness sanction cannot be imposed in a service contract in accordance with Annex B

Only a compensatory fee can be imposed in a contract referred to in Section 68(2) of this Act

40

Section 97

Compensation

Provision for compensation may be made if the harm caused to the contracting authori-

tyentity rights of third parties state security and the public interest by the measure defined

in Section 96(1)(1ndash3) is considered to outweigh the benefits or if the petition has been initiat-

ed following the conclusion of the contract With respect to setting the amount of the compen-

satory fee account shall be taken of the nature of the infringement or omission by the con-

tracting authorityentity the value of the contract in question and the costs and damages in-

curred by the petitioner The Market Court may however decide not to prove for compensa-

tion if the contracting authorityentity has refrained from implementing the contract during the proceedings in the Market Court

Without a specific reason the amount of compensation shall not exceed 10 percent of the val-

ue of the contract

Section 98

Ineffectiveness

The Market Court may declare a contract ineffective if

1) the contracting authorityentity has made a direct award of contract without the basis re-ferred to in this Act and the procedures referred to in Section 81

2) the contracting authorityentity has concluded the contract although there is an obligation in the contract to observe a standstill period

3) the contracting authorityentity has concluded the contract contrary to Section 92 although

the procurement case has been submitted to the Market Court for a decision

In addition a requirement in the situation referred to in subsection 1 points 2 and 3 above is

that the contracting authorityentity has made another infringement contrary to this Act which has affected the chances of the appellant to win the contract

If the contracting authorityentity has concluded the contract in a competition based on the

framework agreement on the basis of Section 80 without observing the standstill period and if

a breach has been committed in the competition in respect of Section 27(2 or 3) such that this

has affected the chances of the appellant to win the contract the Market Court may declare the contract ineffective

The Market Court shall decide to which contractual obligations ineffectiveness shall apply Inef-

fectiveness shall apply only to unfulfilled contractual obligations

Section 99

Non-imposition of ineffectiveness

In the situations referred to in Section 98 above the Market Court may decide not to impose

ineffectiveness for compelling reasons related to the public interest or state security Economic

interests which are directly related to the contract may be deemed compelling only if ineffec-tiveness of the contract would exceptionally have inequitable consequences

The Market Court may not impose ineffectiveness if it would result in serious endangerment of

the implementation of a defence and security project essentially important with respect to

state security

Section 100

41

Infringement fines and reduction of the contract term

The Market Court may order a contracting authorityentity to pay the state an infringement

fine if

1) the Market Court has declared the contract ineffective

2) the contracting authorityentity has concluded the contract although there is an obligation in the contract to observe a standstill period

3) the contracting authorityentity has concluded the contract contrary to Section 92 although the procurement case has been submitted to the Market Court for a decision or

4) the Market Court has decided not to declare the contract ineffective for compelling reasons related to the public interest or state security in accordance with Section 99

In the situation referred to in subsection 1 point 4 above the Market Court may in addition to

or instead of imposing a sanction reduce the contract term so that it ends after a period of time specified by the Court

The Market Court may order a contracting authorityentity to pay the state an infringement

fine or reduce the contract term so that it ends after a period of time specified by the Court

this applies to service contracts referred to in Annex B of this Act the value of which exceeds

the EU threshold as defined in Section 12 if the contracting authorityentity

1) has made a direct award of contract without the basis referred to in this Act and the proce-dures referred to in Section 81 not having been complied with in the direct award

2) has concluded the contract although there is an obligation in the contract to observe the standstill period

3) has concluded the contract contrary to Section 92 although the procurement case has been submitted to the Market Court for a decision or

4) has concluded the contract in a competition based on a framework agreement on the basis

of Section 80 without observing the standstill period and if a breach has been committed in the

competition in respect of Section 27(2 or 3) such that this has affected the chances of the ap-pellant to win the contract

In addition a requirement in the situation referred to in subsection 3 points 2 and 3 above is

that the contracting authorityentity has made another infringement contrary to this Act which

has affected the chances of the appellant to win the contract

With respect to issuing a sanction the Market Court shall take into account the nature of the

mistake or omission by the contracting authorityentity and the value of the contract in ques-

tion The sanction shall not exceed 10 percent of the value of the contract

Section 101

Allocation of sanctions and cumulative effect

If one contracting authorityentity has been responsible for the contracting procedure on be-

half of the other contracting authorities the obligation to compensate for legal costs can be

placed on the contracting authorityentity that acted on behalf of the other contracting authori-

ties

With respect to the sanctions referred to in this Act the Market Court shall take into considera-

tion that the cumulative effect may not become unreasonable for the contracting authori-

tyentity or its contracting party

42

Section 102

Conditional fine

The Market Court may impose a conditional fine in order to underline the importance of com-

plying with the prohibitions or obligations referred to in this Act The provisions of the Act on

Conditional Fines (11131990) shall apply to the imposing of and sentencing to the payment of

conditional fines

If one contracting authorityentity has been responsible for the contracting procedure on be-

half of the other contracting authorities the obligation to compensate for costs can be placed

on the contracting authorityentity that acted on behalf of the other contracting authorities

Section 103

Notification of the Market Courts ruling

The ruling of the Market Court along with the instructions for appeal shall be verifiably notified under the provisions of the Administrative Judicial Procedure Act

With the consent of the appellant and the contracting authorityentity the Market Courts deci-

sion together with the instructions for appeal may be publicised using the electronic contact

information the aforementioned parties have provided to the Market Court

When electronic contact information is used the appellant and the contracting authorityentity

shall be deemed to have been notified of the decision and instructions for appeal on the date

on which the message concerning the matter is available in the recipientsrsquo reception equipment

so that the message can be handled The provisions of Section 77(1) shall apply to electronic

notification

Section 104

Prohibition to appeal

A case that is within the jurisdiction of the Market Court cannot be appealed against under the

provisions of the Local Government Act or the Administrative Judicial Procedure Act

A decision or ruling concerning a contract which has been excluded from the scope of applica-

tion of this Act on the basis of Section 6(2) and Sections 78 or 13 may not be appealed under

the Administrative Judicial Procedure Act or the Local Government Act The subcontractor may

not under the Administrative Judicial Procedure Act or the Local Government Act appeal the

decision or action taken by the contracting authorityentity concerning the subcontract

Section 105

Appeals against the decisions of the Market Court

Appeals against a ruling of the Market Court can be lodged in the Supreme Administrative Court in accordance with the Administrative Judicial Procedure Act

As referred to in Section 93(1) an appeal cannot be lodged against the ruling by the Market

Court in the Supreme Administrative Court A ruling by the Market Court does not prevent the

case from being reconsidered by the Market Court if the grounds for the previous ruling have

changed

If the Market Court has ruled that it will not grant the processing authorisation referred to in

Section 88(3) then an appeal against this ruling can only be lodged if the Supreme Adminis-

trative Court grants a leave to appeal

43

Section 106

Application of the Administrative Judicial Procedure Act

The Administrative Judicial Procedure Act shall apply to appeals unless otherwise provided by this Act

Section 107

Implementation of rulings

A ruling of the Market Court has to be observed notwithstanding any appeal unless the Su-

preme Administrative Court orders otherwise The ruling of the Market Court issuing the sanc-

tion referred to in Section 96(1)(4ndash7) may only be implemented on the basis of a final ruling

The implementation of a ruling concerning a sanction shall be supervised by the Legal Register

Centre The Legal Register Centre must be informed of any ruling by the Market Court and

Supreme Administrative Court to issue a sanction

Section 108

Compensation for damages

Those who cause damage to a candidate tenderer or supplier shall be liable to pay compensa-

tion for the damage they have caused while acting in breach of this Act or any regulations based thereon or the European Union law

However when the claim for damages refers to costs incurred as a result of the tendering pro-

cedure the candidate or tenderer is entitled to compensation if it can provide proof of the in-

correct procedure as defined in subsection 1 and that had the procedure been correct it would have had a genuine chance to win the contract

In respect of the cases defined in subsection 1 and 2 a Court of first instance shall be the

competent court in accordance with Chapter 10 of the Code of Judicial Procedure

Chapter 16

Further provisions

Section 109

Disclosure of information

Notwithstanding the provisions concerning confidentiality provided for in the Act on the Open-

ness of Government Activities or in any other act the contracting authorityentity shall supply

statistics and other information concerning the different stages of the contract and performed

contracts to the Finnish authorities and European Union bodies to monitor contracts and ex-

change information on the scale and to the time limit required by European Union law Pursu-

ant to this Act the Ministry of Economic Affairs and Employment has the right to forward in-

formation it has received to the European Union authorities notwithstanding the regulations on confidentiality

The contracting authorityentity shall draw up a written report on each contract and framework

agreement which includes essential information on the contract contract procedure and the

candidates and tenderers who participated as well as on the decisions made in connection with

44

the contract The report and its main content shall be forwarded on request to the European

Commission A separate report is not required if corresponding information can be found in the

contract decision or other documents

To document the course of the realised contract procedure the contracting authorityentity

shall implement necessary measures in an electronic format

More specific rules are laid down in a Government decree on the obligation to provide statistics

and the responsibility of the contracting authorityentity to draw up reports on contract proce-

dures and contract decisions as referred to in subsection 1 which are to be forwarded to the

European Union bodies

Section 110

Entry into force and transitional provisions

This Act enters into force on 1 January 2012

If a contract procedure is started before the entry into force of this Act the provisions that

were in force at the time when this Act entered into force shall be applied The contract proce-

dure shall be deemed to have commenced when the contract notice was published A contract

which does not require the publication of the contract notice shall be deemed to have com-

menced when the invitation to tender or a meeting is sent or negotiations with suppliers begin

Measures necessary for the implementation of this Act may be undertaken before the Actrsquos

entry into force

45

ANNEX A

Primary services

Group No

Matter CPV Reference No

1 Maintenance and repair services 50000000-5 50100000-6-50884000-4 (except 50310000-1-50324200-4 and 50116510-9 50190000-3 50229000-6 50243000-0) and 51000000-9-51900000-1

2 Services related to international military assistance

75211300-1

3 Defence services military defence services and civil defence services

75220000-4 75221000-1 75222000-8

4 Investigation and security services 79700000-1-79720000-7

5 Land transport services 60000000-8 60100000-9-60183000-4 (except 60160000-7 60161000-4) and 64120000-3-64121200-2

6 Air transport services for passengers and freight except transport of mail

60400000-2 60410000-5-60424120-3 (except 60411000-2 60421000-5) 60440000-4-60445000-9 and 60500000-3

7 Transport of mail by land and by air 60160000-7 60161000-4 60411000-2 60421000-5

8 Railway transport services 60200000-0-60220000-6

9 Sea transport services 60600000-4-60653000-0 and 63727000-1-63727200-3

10 Support and auxiliary transport services 63100000-0-63111000-0 63120000-6-63121100-4 63122000-0 63512000-1 and 63520000-0-6370000-6

11 Telecommunications services 64200000-8-64228200-2 72318000-7 and 72700000-7-72720000-3

12 Financial services insurance services 66500000-5-66720000-3

13 Data-processing and related services 50310000-1-50324200-4 72000000-5-72920000-5 (except 72318000-7 and 72700000-7-72720000-3) 79342410-4 9342410-4

14 Research and development services(sup1) and evaluation tests

73000000-2-73436000-7

15 Accounting auditing and bookkeeping services

79210000-9-79212500-8

16 Management consulting(sup2) and related services

73200000-4-73220000-0 79400000-8-79421200-3 and 79342000-3 79342100-4 79342300-6 79342320-2 79342321-9 79910000-6 79991000-7 98362000-8

17 Architectural services engineering services and integrated engineering services urban planning and landscape architectural services related scientific and technical consulting services technical testing and analysis services

71000000-8-71900000-7(except 71550000-8) and 79994000-8

18 Building cleaning services and building and property management services

70300000-4-70340000-0 and 90900000-6-90924000-3

19 Sewage and refuse disposal services 90400000-1 to 90743200-9 (except 90712200-3)

46

sanitation and similar services 90910000-9-90920000-2 and 50190000-3 50229000-6 50243000-0

20 Training and simulation services in the fields of defence and security

80330000-6 80600000-0 80610000-3 80620000-6 80630000-9 80640000-2 80650000-5 80660000-8

(sup1) Except the research and development services referred to in Section 13(2)(5) (sup2) Except arbitration and conciliation services ANNEX B Secondary services

Group No

Matter CPV Reference No

21 Hotel and restaurant services 55100000-1-55524000-9 and 98340000-8-98341100-6

22 Support and auxiliary transport services 63000000-9-63734000-3 (except 63711200-8 63712700-0 63712710-3) 6372700-1-63727200-3 and 98361000-1

23 Legal services 79100000-5-79140000-7

24 Employment and personnel recruitment services(sup1)

79600000-0-79635000-4 (except 79611000-0 79632000-3 79633000-0) and 98500000-8-98514000-9

25 Health and social services 79611000-085000000-9 and -85323000-9 (except 85321000-5 and 85322000-2)

26 Other services

(sup1) Except employment contracts

47

ANNEX C NACEsup1ordm

Main category F CONSTRUCTION CPV code

2-digit level

3-digit level

4-digit level

Description Comments

45 Construction This two-digit level includes the following construction of new buildings and works reconstruction and common repairs

45000000

451 Site preparation

45100000

4511 Demolition and wreck-ing of buildings earth moving

This four-digit level includes the following - demolition of buildings and other structures - clearing of building sites and earth moving site excavation landfill and levelling trench dig-ging quarrying blasting etc - site preparation for mining

- overburden removal and other development and prepa-ration of mines and mining sites

This four-digit level also includes - building site underdrainage - drainage of agricultural or forestry land

45110000

4512 Test drilling This four-digit level includes the following - test drilling test boring and sampling for construction geophysical geological or similar purposes This four-digit level excludes the following - drilling of oil or gas wells comp 1120 - water well drilling 4525

45120000

sup1deg Council regulation (EEC) No 303790 (Official Journal of the European Union 293 24 October 1990 p 1) on the statistical classification of economic activities in the European Community issued on 9 October 1990 regulation as amended by Commission Regulation (EEC) No 76193 (Official Journal of the European Union L 83 3 April 1993 p 1) If there are differences of opinion between CPV and NACE NACE nomenclature shall apply

48

- shaft sinking comp 4525 - oil and gas field exploration geophysical geological and seismic surveying comp 7420

452 Building complete constructions or parts thereof

45200000

4521 Building work This four-digit level includes the following - Construction of all types of buildings - civil engineering and hydraulic engineering works - building of bridges including those for elevated highways metro tunnels - construction of long-distance pipelines communication cables and long-distance networks for power lines - construction of long-distance pipelines telecommunication ca-bles and municipal network power lines related installation work - on-site assembly and erection of pre-fabricated constructions This four-digit level excludes the following - services related to oil and gas extraction comp 1120 - erection of complete prefabricat-ed constructions from self-manufactured parts not of con-crete comp 20 26 28 - construction work other than buildings for stadiums swimming pools gymnasiums tennis courts golf courses and other sports installations comp 4523 building installation comp 453 - building completion comp 454 - architectural and engineering services comp 7420 - project management for construction comp 7420

45210000 Except 45213316 45220000 45231000 45232000

4522 Erection and covering of roofs

This four-digit level includes the following - erection of roofs - roof covering - waterproofing

45261000

49

4523 Construction of highways streets airports and sports equipment

This four-digit level includes the following - construction of highways streets other vehicular and pedestrian ways - construction of railways - construction of airfield runways - construction work other than build-ings for stadiums swimming pools gymnasiums tennis courts golf courses and other sports installations - painting of markings on road surfaces and car parks This four-digit level excludes the following - preliminary earth moving comp 4511

45212212 and DA03 45230000 except 45231000 45232000 45234115

4524 Construction of water projects

This four-digit level includes the following building works - construction of waterways harbour and river works marinas locks etc - construction of dams and breakwaters - dredging - subsurface work

45240000

4525 Other construction work

This four-digit level includes the following - construction activities specialising in one aspect common to different kinds of structures requiring specialised skill or equipment - construction of foundations including pile driving - water well drilling and construction shaft sinking - erection of non-self-manufactured steel frame elements - steel bending - bricklaying and stone setting - erecting and dismantling of scaffolds and work platforms including rental of scaffolds and work platforms - erection of chimneys and industrial ovens This four-digit level excludes the following - rental of scaffolds without erecting and dismantling comp 7132

45250000 45262000

453 Building installation 45300000

4531 Installation of electri-cal wiring and fittings

This four-digit level includes the installation in buildings or other

45213316 45310000

50

construction projects of - electrical wiring and fittings - telecommunications systems - electrical heating systems - residential antennas - fire alarms - burglar alarm systems - lifts and escalators - lightning conductors etc

Except 45316000

4532 Insulation work This four-digit level includes the following - installation in buildings or other construction projects of thermal sound or vibration insulation This four-digit level excludes the following - waterproofing comp 4522

45320000

4533 Plumbing This four-digit level includes the installation in buildings or other construction projects of the following - plumbing and sanitary equipment and fittings - gas fittings - heating ventilation refrigeration or air-conditioning equipment and ducts - sprinkler systems This four-digit level excludes the following - installation of electrical heating systems comp 4531

45330000

4534 Other installation work

This four-digit level includes the fol-lowing - installation or other construction of illumination and signalling systems for roads railways airports and harbours - installation in buildings or other construction projects of fittings and fixtures

45234115 45316000 45340000

454 Building completion 45400000

4541 Plastering This four-digit level includes the following - application in building or other construction projects of interior and exterior plaster or stucco and other similar lathing materials

45410000

4542 Joinery installation This four-digit level includes the following - installation of non-self-manufactured doors windows door

45420000

51

and window frames fitted kitchens staircases and shop fittings made of wood or other materials - completion of interiors such as ceilings wooden wall coverings wall paneling installation of movable partitions etc This four-digit level excludes the following - laying of parquet and other wooden floor coverings comp 4543

52

4543 Floor covering and wall upholstery

This four-digit level includes the following - covering or tiling of buildings or other structures using - ceramic concrete or stone wall or floor tiles or stones - parquet or other wooden floor covering - wall-to-wall carpeting or linoleum also rubber or plastic floor covering - wall or floor covering made of mosaic marble granite or slate - wallpaper

45430000

4544 Painting and glazing This four-digit level includes the following - interior and exterior painting of buildings - exterior painting of other structures - installation of mirrors glass etc This four-digit level excludes the following - installation of windows comp 4542

45440000

4545 Other building completion

This four-digit level includes the following - construction of private swimming pools - cleaning the exterior surfaces of buildings using steam sandblasting or other similar method - other building completion work not classified elsewhere This four-digit level excludes the following - cleaning of buildings and other structures comp 7470

45212212 and DA03 45450000

455 Rental of construction or dismantling equip-ment with operators

45500000

4550 Rental of construction or dismantling equip-ment with operators

This four-digit level excludes the following - rental of construction or dismantling machines and equipment without operators comp 7132

45500000

29

Section 65

Exemption from an obligation related to subcontracting

A tenderer selected as a contracting party may not be required to enter into a subcontract if it

indicates in a manner satisfactory to the contracting authorityentity that none of the subcon-

tractors that participated in the competition or none of their tenders fulfil the requirements

set in the subcontract notice and therefore the tenderer selected as a contracting party could

not fulfil the contract requirements

Section 66

Framework agreements

The provisions of Section 62 shall not apply to subcontracts awarded by the tenderer selected

as a contracting party if the framework agreement was put out to tender in accordance with

the provisions of Section 64

Subcontracts based on a framework agreement shall be awarded in accordance with the condi-

tions confirmed in the framework agreement and concluded between the original participants

to the framework agreement Conditions analogous to those of the framework agreement shall be complied with in subcontracting agreements

The framework agreement may not be used in such a way as to distort restrict or prevent

competition

The term of the framework agreement may not exceed seven years In exceptional cases the

framework agreement may be longer in duration when duly justified by the expected life cycle

of the supplies equipment and systems delivered and the technical problems that might re-

sult from the change of supplier

Section 67

The responsibility of the tenderer for carrying out the contract

The requirements set by the contracting authorityentity on the basis of this Chapter and the

notices issued by the tenderers based on them do not limit the responsibility of the tenderer

selected as a contracting party to carry out the contract PART III

National procedures

Chapter 10 Tendering procedures for contracts below the EU threshold for second-

ary service contracts referred to in Annex B and for certain other contracts

Section 68

Contract award procedures

The contract award procedures specified in this Chapter may be used for service contracts

public works contracts and the service contracts referred to in Annex A which are below the EU

threshold referred to in Section 12(1) but above the national threshold referred to in Section

13(1) and for secondary service contracts referred to in Annex B which are above the national

threshold referred to in Section 13(1)

The procedures laid down in this Chapter may also be used for defence contracts referred to in

Section 5 when the value of the defence contracts exceed the national threshold as referred to

in Section 13 provided that the criteria set in Article 346(1)(b) of TFEU are fulfilled

30

Section 69

General rules of procedure

The contracting authorityentity shall aim to take advantage of the prevailing competitive con-

ditions and award the contract primarily through competitive bidding A sufficient number of

tenders shall be requested in terms of the scope and subject matter of the contract to ensure

competition

A public notice shall be issued however the publication obligation does not apply in the case

of contracts that fulfil the criteria set in Article 346(1)(b) of TFEU

The contracting authorityentity may request a tender directly from one supplier if competitive

bidding cannot be carried out for reasons justified on the basis of national defence state secu-rity or security of supply

The contracting authorityentity may also request a tender directly from one supplier if

1) no tenders or no suitable tenders were received in the competitive bidding carried out

previously a further requirement is that the conditions of the original invitation to ten-

der are not fundamentally changed

2) for technical reasons or for reasons connected with the protection of exclusive rights the contract may be awarded only to a particular supplier

3) for reasons of urgency brought about by a crisis it is not possible to carry out competi-tive bidding

4) execution of the contract is absolutely necessary and competitive bidding cannot be

carried out for reasons of extreme urgency brought about by events unforeseeable by

and independent of the contracting authorityentity

5) the product to be acquired are manufactured purely for scientific or research purposes

and it is not a matter of establishing commercial viability of the products or to recover research and development costs

6) the object of the contract is a research and development service that has not been ex-cluded from the scope of this Act on the basis of Section 8

7) the contract is necessary in order to determine whether the final result of the research

and development service is suitable to be used as intended by the contracting authori-tyentity

8) the object of the contract consists of supplies quoted and purchased on a commodity market

9) the supplies are purchased on particularly advantageous terms from either a supplier

winding up its business activities or from the receivers of a bankruptcy or liquidators in

insolvency proceedings an arrangement with creditors or a similar procedure

10) the object of the contract is a second-hand product

11) the object of the contract is based on a supplementary contract right incorporated into

the contract

12) the object of the contract is additional deliveries by the original supplier which are in-

tended either as a partial replacement of existing supplies or installations or as the ex-

tension of existing supplies or installations and a change of supplier would result in in-

compatibility or disproportionate technical difficulties in operation and maintenance

13) the object of the contract is additional works or services not included in the project ini-

tially but which have through unforeseen circumstances become necessary for the per-

formance of the works or services as originally described

31

Section 70

Negotiations with tenderers and specifying the tender and the invitation to tender

The contracting authorityentity may discuss all aspects of the contract with the tenderers dur-

ing the negotiation provided that the negotiations do not result in changing constituent ele-

ments in the invitation to tender in a discriminating manner or in a manner which distorts

competition

The purpose of the negotiations shall be to select the best tender in accordance with Section

73(2) or to determine one or more alternative solutions for contract implementation before

sending the final invitation to tender The dialogue may take place in successive stages in or-

der to reduce the number of tenders or solutions to be discussed during the dialogue by apply-

ing the comparison criteria indicated in the invitation to tender or project description

In competitive bidding the requirement for negotiations shall be that the negotiations and the

criteria to be complied with during the negotiations have been stated in the invitation to tender

or the project description

The contracting authorityentity shall ensure equal treatment of all candidates and tenderers

during the negotiations and shall not provide information in a manner that may compromise

the equal treatment of the participants in competitive bidding

Section 71

Invitation to tender

The invitation to tender shall be submitted in writing and drawn up to be sufficiently clear in

order to enable submission of commensurate and mutually comparable tenders The invitation

to tender shall contain all information that is particularly important in terms of the contracting

procedure and submitting the tender

The invitation to tender shall include the award criterion and where the criterion for the award is that of the economically most advantageous tender the comparison criteria and the ranking thereof The invitation to tender shall indicate a reasonable time allotted for the tenderers to submit a tender taking into consideration the scope and subject matter of the contract

The contracting authorityentity may charge a reasonable fee for the invitation-to-tender doc-

uments to recover the costs arising from the exceptionally extensive scope of the documenta-

tion the materials related thereto or other similar factors

Section 72

Drawing up the invitation to tender and submitting the tender

The invitation to tender and the tenders based thereon shall be drawn up in writing They may be executed orally only in exceptional circumstances if the written procedure is justifiably not appropriate If the invitation to tender or the tenders are not drawn up in writing a record shall be kept of the negotiations held with the tenderers the record shall indicate the infor-mation impacting the course of the procedure and the position of the tenderers

Section 73

Selection of a tender and a tenderer rejecting a tender

The contracting authorityentity may exclude from the competitive bidding any supplier which

taking into consideration the scope and object of the contract and other criteria does not pos-

sess the qualifications to carry out the contract The contracting authorityentity may exclude

32

from the competitive bidding any tender submitted by a tenderer who does not possess the

qualifications to carry out the contract when taking into consideration the scope and object of

the contract and other criteria

The contracting authorityentity shall award the contract to the tenderer whose tender has the

lowest price or complies with the comparison criteria set in the invitation to tender and is eco-

nomically the most advantageous

The contracting authorityentity may reject a tender which does not fulfil the essential condi-

tions set in the invitation to tender or has an abnormally low price in terms of the subject mat-

ter and scope of the contract Before it may reject a tender the contracting authorityentity

shall request in writing details of the constituent elements of a tender that is abnormally low in

price

PART IV

General provisions on decisions concerning contract awards conclusion of contracts

procurement rectification public access to the contract documents and further provi-sions

Chapter 11

Decisions concerning the award of contracts and notification thereof

Section 74

Decision concerning the award

The contracting authorityentity shall provide in writing the decisions affecting the position of

the candidates and tenderers and the results of the tendering procedure including the grounds for the outcome of the procedure

The decision or the related documentation shall state the factors that fundamentally affected

the outcome including the grounds for rejecting the candidate tenderer or tender and the

grounds on which the accepted contracts were compared As regards a decision concerning

asking for bids for a contract based on a framework arrangement stating the facts showing

that the selection and award criteria have been applied as required under Section 27 shall

suffice If the standstill period referred to in Section 79 applies to the contract the decision or

the related documents shall also state the period of time after which the contract may be awarded

The contracting authorityentity is not required to make a decision referred to in this Section

concerning a contract for the additional supplies referred to in Section 23 or Section 69(4)(12)

and additional service or contract referred to in (13) or the temporary arrangements for a con-tract referred to in Section 95

In contracts based on framework agreements the contracting authorityentity is not required to make the decision referred to in this Section if

1) the contract is awarded in accordance with the conditions laid down in the framework

agreement without asking for bids or

2) the competitive bidding is based on a framework agreement when the value of the contract

does not exceed the EU threshold

33

Section 75

Suspending the contract award procedure

The contract award procedure can be suspended only for verifiable and justifiable reason

The provisions of Section 74 concerning contract ruling shall apply to the suspension of the

contract award procedure

Section 76

Appeal instructions and instructions for request for rectification

Instructions for appeal shall accompany the decisions made by the contracting authori-

tyentity explaining how to refer a case to the Market Court for consideration contact infor-

mation of the contracting authorityentity for the notice referred to in Section 90 and instruc-

tions for seeking rectification (petition instructions) explaining how the candidate or tenderer can have the case submitted for reconsideration through procurement rectification

With regard to the issuing and amending appeal and petition instructions the provisions of

Chapter 3 of the Administrative Judicial Procedure Act (5861996) shall apply in terms of ap-

peals and the provisions of Chapter 7 of the Administrative Procedure Act (4342003) shall

apply in terms of petition instructions

Section 77

Notification of the decision concerning the contract award

The decision of the contracting authorityentity including the grounds for the decision and the

appeal and petition instructions shall be submitted in writing to the parties concerned The de-

cision including the aforementioned documents shall be submitted using the electronic con-

tact information which the candidate or tenderer has given to the contracting authorityentity

When using the electronic contact information the candidate and tenderer shall be considered

to have received notice of the decision and the accompanying documents on the date on

which the electronic message containing the aforementioned documents is available in the re-

cipients reception equipment such that the message can be handled Such a point in time shall

mean the date on which the message was sent unless a reliable explanation concerning the

malfunction of telecommunications links or another analogous reason because of which the

electronic message reached the recipient later When electronic notification is used the con-

tracting authorityentity shall include in the message a separate note concerning the date

when the message was sent

The decision including the grounds for it and the appeal and petition instructions may also be

sent via regular mail under the Administrative Procedure Act Candidates and tenderers shall

be considered to have received notification of the decision and the accompanying documents

on the seventh day from the date on which they were sent unless the candidate or tenderer

proves that the notification occurred at a later date

Notification on the decision of the contracting authorityentity shall be issued without undue

delay at the latest 15 days from the date on which the contracting authorityentity receives a written request concerning notification on the decision that was made

34

Chapter 12

Public contract

Section 78

Concluding a public contract

Having made the decision to award a public contract the contracting authorityentity shall

conclude the contract The contract is concluded upon signing a written agreement

Section 79

Standstill period

In the case of a contract above the EU threshold referred to Section 12 above the contract can

be concluded at the earliest 21 days from the date when the candidate or tenderer received or is considered to have received the decision and instructions for appeal (standstill period)

A standstill period shall not be applied in direct contract awards

The provisions of Section 92 shall apply to the effect of an appeal on concluding a contract

Section 80

Exceptions to the compliance with the standstill period

The standstill period need not be upheld if

1) the contract concerns a procurement carried out on the basis of the framework agreement in accordance with Section 27

2) the contract is awarded to the tenderer who submitted the only acceptable tender and no

other tenderers or candidates remain in the competitive bidding whose position would be af-

fected by the selection of a co-contractor

3) the contract concerns a procurement referred to in Section 68(2)

Section 81

Notification of direct awards and conclusion of public contracts

In direct awards exceeding the EU threshold the contracting authorityentity may after hav-

ing made the award decision send a notice for publication concerning the direct award of con-

tract before concluding the contract In that case the contract can be concluded at the earli-est 14 days after the publication of the notice in the Official Journal of the European Union

Chapter 13

Procurement rectification

Section 82

Rectification of a procurement

The contracting authorityentity may remove an incorrect decision or annul an award decision

made during the contracting procedure concerning the legal status of the candidates or ten-

35

derers and make a new decision (procurement rectification) if the award decision or other deci-

sion reached during the contracting procedure is based on an error that occurred in the appli-cation of the law

Amending an award decision or other decision does not require the consent of the party con-

cerned However an award decision or other decision cannot be amended through procure-

ment rectification if the contract has been concluded

Section 83

Initiation of procurement rectification

The contracting authorityentity may take up a procurement rectification on its own initiative

or in response to a demand of the party in question The contracting authorityentity shall noti-fy the concerned parties immediately of the initiation of a procurement rectification

A subcontractor does not have the status of a concerned party referred to in subsection 1 of this section in terms of the matter concerning the contract

The concerned party shall present the demand within 14 days after receipt of the notification

of the award decision or other decision made by the contracting authorityentity during the

contracting procedure The contracting authorityentity itself may amend the award decision or

other decision no later than 60 days after the date the decision concerning the procurement rectification is made

Appealing the case to the Market Court does not prevent a procurement rectification or its pro-

cessing A procurement rectification may also apply to a decision of the contracting authori-

tyentity that has become legally binding if the case has not been submitted to the Market

Court for ruling

Section 84

Effect of the processing of procurement rectification on the proceedings in the Mar-ket Court

The initiation and processing of a procurement rectification do not affect the time limit within

which the concerned party has the right pursuant to this Act to submit an appeal against the

decision to the Market Court

If the award decision or other decision that was reached during the contract award procedure

is to be amended and has been appealed against before the Market Court the Market Court

shall be notified of the processing of the case through procurement rectification and informed

of the decision reached In processing a procurement rectification the contracting authori-

tyentity may prohibit the enforcement of the award decision or other decision or order it to be

suspended The Market Court shall be notified of a prohibition or suspension of enforcement if an appeal has been lodged against the decision in the Market Court

If the contracting authorityentity amends its award decision or other decision by means of a

procurement rectification such that as a result the appellant to the Market Court no longer has

the need for judicial relief or the need for a justified decision the Market Court may decline to

process such a case without giving a ruling on the principal claim

Section 85

The application of procurement rectification to other contracts

A procurement rectification can also be applied to amend an award decision or other decision

made by the contracting authorityentity during the contracting procedure to which this Act

36

shall not apply pursuant to Section 6(2) and Sections 7 8 or 13 A decision made on account

of such a contract rectification may not be appealed against in the Market Court or under the Administrative Judicial Procedure Act or Local Government (Act 3651995)

Chapter 14

Public access to the contract documents

Section 86

Application of the provisions concerning public access to the contract documents

The Act on the Openness of Government Activities (6211999) shall apply to public access to

the documents of the contracting authorityentity and the fees charged for the documents if

the contracting authorityentity is the authority referred to in Section 4 of the aforementioned

Act or if it is obliged to comply with that Act on the basis of a provision contained elsewhere in the Act

In terms of the right of parties other than the participants in the competitive bidding conducted

by the contracting authorityentity referred to in subsection 1 to have access to the docu-

ments drawn up and received for processing of the tender and the confidentiality obligation of

those employed by the contracting authorityentity the provisions of the Act on the Openness

of Government Activities shall apply to the right of concerned parties to have access to the

document to how public access to the document is determined and to the processing and resolving of the matter concerning access to information

The decision of the contracting authorityentity which has resolved the matter concerning ac-

cess to information can be appealed in accordance with the provisions of Section 33 of the Act

on the Openness of Government Activities The Supreme Administrative Court in whose judicial

district the contracting authorityentity is located is the competent Supreme Administrative

Court for considering the appeal submitted on the basis of a decision made by a party other

than the contracting authorityentity acting as an authority

Chapter 15

Appealing and the implications thereof

Section 87

Parties entitled to appeal

A concerned party may appeal the matter to the Market Court by issuing a complaint A sub-

contractor does not have the position of an interested party referred to in subsection 1 of this Section in terms of the matter concerning the contract

In matters concerning control procedures of the European Union the Ministry of Economic Af-

fairs and Employment may also refer the matter to the Market Court for consideration

Section 88

Object of the appeal

An appeal may be lodged before the Market Court against an award decision of the contracting

authorityentity referred to in this Act or other decision reached by the contracting authori-

tyentity during the contracting procedure which affects the status of the candidate or the ten-derer

37

An appeal may not be lodged before the Market Court against an award decision or other deci-

sion of the contracting authorityentity which concerns only the preparation of the contracting

procedure An appeal may not be lodged against a decision or other measure taken by the

supplier selected as a contracting party concerning a subcontracting agreement or an award

decision or determination made by the contracting authorityentity during the implementation of the contract

A contract based on a framework agreement referred to in Section 27 above and a contract

referred to in Section 68(2) may not be appealed unless a processing authorisation is issued by the Market Court The authorisation shall be issued if

1) the processing of the case is important in terms of applying the Act in other similar matters

or

2) there is a cogent reason for it related to the procedures of the contracting authorityentity

Section 89

Time period for appeal

Unless otherwise prescribed in this Section an appeal must be lodged in writing within 14 days

from the date when the candidate or tenderer received the notice concerning the contract with the instructions for appeal

If the contracting authorityentity has concluded a public contract after the contract decision

was issued on the basis of Section 80 point 1 without complying with the standstill period

the appeal shall be lodged within 30 days from the date when the tenderer has received notice

of the decision with the instructions for appeal

An appeal before the Market Court shall be lodged within six months of the date of the contract

decision provided that the candidate or tenderer has received notice of the contract decision

and the contract decision or appeal instructions were materially deficient or the appeal instruc-tions have been missing altogether

If the contracting authorityentity has with regard to a contract above the EU threshold re-

ferred to in Section 12 above delivered a notice regarding a direct award of contract for publi-

cation in the Official journal of the European Union the complaint must be lodged within 14 days from the publication of the notice

If the notice referred to in subsection 4 has not been published the appeal concerning a direct award of contract shall be lodged

1) within 30 days of the date of publication of a contract-award notice has been published in

the Official Journal of the European Union or

2) within six months from the conclusion of the contract at the latest

Section 90

Notification of appeal to the contracting authorityentity and the list of procurement

cases

The appellant in a contract-related matter must notify the contracting authorityentity in writ-ing of referring the case to the Market Court for consideration

The notification must be delivered to the contracting authorityentity at the latest when the

complaint concerning the contract is delivered to the Market Court The notification shall be delivered to the address provided by the contracting authorityentity

38

The Market Court shall maintain and publish a list which is as comprehensive and up-to-date

as possible of contract-related matters pending at the Market Court

Section 91

The contracting authorityentity as the opponent and compensation of legal costs

In the proceedings regarding contract-related matters the contracting authorityentity shall be considered the opponent of the party or agency lodging the appeal

The provisions of Section 74 subsections 1 and 2 of the Administrative Judicial Procedure Act shall apply to the compensation of legal costs regarding contract-related matters

The provisions of Section 74 subsections 1 and 2 of the administrative Judicial Procedure Act

concerning public authorities or other public parties shall apply to the decision concerning the

liability to provide compensation for the legal costs of the opponent If one contracting authori-

tyentity has been responsible for the contracting procedure on behalf of the other contracting

authorities the obligation regarding compensation of legal costs may be placed on the con-

tracting authorityentity which acted on behalf of the other contracting authorities

Section 92

The effect of the appeal on concluding the contract

In case of a contract where the standstill period or the time limit referred to in section 81 must

be observed the contracting authorityentity may not conclude the contract if the matter has

been brought up for consideration by the Market Court

If the Market Court decides a case concerning enforcement or decides on the principal claim

before the standstill period or the time limit referred to in Section 81 has expired the contract-

ing authorityentity shall observe the standstill period or the time limit referred to in Section

81 until the end of the period notwithstanding the ruling of the Market Court

Section 93

Interim decisions of the Market Court

While the appeal is under consideration the Market Court may prohibit suspend or allow the

implementation of the decision concerning the contract award or order the contracting proce-

dure to be suspended otherwise as an interim measure for the duration of the proceedings in the Market Court

When deciding on the measure referred to in subsection 1 the Market Court shall take into

consideration that the harm caused by the measure to the opponent the rights of third par-

ties the security of the state or the public interest may not outweigh its benefits

However the decision prescribed in subsection 1 of this Section cannot be carried out in the case of a contract referred to in Section 68(2) of this Act

A legally trained member of the Market Court may alone issue a ruling as an interim measure

Section 94

Interim commitment of the contracting authorityentity

While the appeal is under consideration the contracting authorityentity may provide a written

undertaking to the Market Court stating that it will not enforce the decision concerning the contract for as long as the matter is pending in the Market Court

39

If the contracting authorityentity provides the Market Court with the undertaking referred to

in subsection 1 the Market Court will not issue without a specific reason a decision on the

obligation to interim prohibition on implementing the decision to award the contract

Section 95

Temporary organisation of a contract

If an appeal has been lodged against a contract before the Market Court the contracting au-

thorityentity may temporarily organise the contract by ordering it from a supplier who partici-

pated in the contracting procedure or from a previous supplier if the nature of the contract is

such that executing the contract cannot be postponed for the duration of the Market Court pro-ceedings

Temporary contract arrangements must not hinder the execution of the following items by means of a decision of the Market Court

1) the decision of the contracting authorityentity to cancel the contract in full or in part

2) prohibit the contracting authorityentity from applying any erroneous item included in the contract document or otherwise complying with an incorrect procedure or

3) require the contracting authorityentity to rectify its incorrect procedure

Section 96

Sanctions imposed by the Market Court

If during the contract procedure actions have been taken which are against this Act or the provisions based thereon or against European Union legislation the Market Court may

1) cancel the decision of the contracting authorityentity in full or in part

2) prohibit the contracting authorityentity from applying any erroneous item included in the contract document or otherwise complying with an incorrect procedure

3) require the contracting authorityentity to correct its erroneous procedure

4) order the contracting authorityentity to pay a compensatory fee to the party which would

have had a genuine chance to win the bidding competition had the procedure been correct

5) impose an ineffectiveness sanction on the contracting authorityentity

6) order the contracting authorityentity to pay an infringement fine to the state

7) reduce the contract term to end after a period of time specified by the Market Court has

passed

The provisions of Sections 97ndash100 shall apply to determining the sanctions mentioned in sub-

section 1 points 4ndash7 above When determining these sanctions the Market Court may consid-

er the contract to have been concluded on the basis of specific circumstances provided that

the contracting authorityentity has especially commenced the implementation of the contract

The ineffectiveness sanctions infringement fine and reduction of contract terms may only be

issued in contracts exceeding the EU thresholds referred to in Section 12 However an ineffec-tiveness sanction cannot be imposed in a service contract in accordance with Annex B

Only a compensatory fee can be imposed in a contract referred to in Section 68(2) of this Act

40

Section 97

Compensation

Provision for compensation may be made if the harm caused to the contracting authori-

tyentity rights of third parties state security and the public interest by the measure defined

in Section 96(1)(1ndash3) is considered to outweigh the benefits or if the petition has been initiat-

ed following the conclusion of the contract With respect to setting the amount of the compen-

satory fee account shall be taken of the nature of the infringement or omission by the con-

tracting authorityentity the value of the contract in question and the costs and damages in-

curred by the petitioner The Market Court may however decide not to prove for compensa-

tion if the contracting authorityentity has refrained from implementing the contract during the proceedings in the Market Court

Without a specific reason the amount of compensation shall not exceed 10 percent of the val-

ue of the contract

Section 98

Ineffectiveness

The Market Court may declare a contract ineffective if

1) the contracting authorityentity has made a direct award of contract without the basis re-ferred to in this Act and the procedures referred to in Section 81

2) the contracting authorityentity has concluded the contract although there is an obligation in the contract to observe a standstill period

3) the contracting authorityentity has concluded the contract contrary to Section 92 although

the procurement case has been submitted to the Market Court for a decision

In addition a requirement in the situation referred to in subsection 1 points 2 and 3 above is

that the contracting authorityentity has made another infringement contrary to this Act which has affected the chances of the appellant to win the contract

If the contracting authorityentity has concluded the contract in a competition based on the

framework agreement on the basis of Section 80 without observing the standstill period and if

a breach has been committed in the competition in respect of Section 27(2 or 3) such that this

has affected the chances of the appellant to win the contract the Market Court may declare the contract ineffective

The Market Court shall decide to which contractual obligations ineffectiveness shall apply Inef-

fectiveness shall apply only to unfulfilled contractual obligations

Section 99

Non-imposition of ineffectiveness

In the situations referred to in Section 98 above the Market Court may decide not to impose

ineffectiveness for compelling reasons related to the public interest or state security Economic

interests which are directly related to the contract may be deemed compelling only if ineffec-tiveness of the contract would exceptionally have inequitable consequences

The Market Court may not impose ineffectiveness if it would result in serious endangerment of

the implementation of a defence and security project essentially important with respect to

state security

Section 100

41

Infringement fines and reduction of the contract term

The Market Court may order a contracting authorityentity to pay the state an infringement

fine if

1) the Market Court has declared the contract ineffective

2) the contracting authorityentity has concluded the contract although there is an obligation in the contract to observe a standstill period

3) the contracting authorityentity has concluded the contract contrary to Section 92 although the procurement case has been submitted to the Market Court for a decision or

4) the Market Court has decided not to declare the contract ineffective for compelling reasons related to the public interest or state security in accordance with Section 99

In the situation referred to in subsection 1 point 4 above the Market Court may in addition to

or instead of imposing a sanction reduce the contract term so that it ends after a period of time specified by the Court

The Market Court may order a contracting authorityentity to pay the state an infringement

fine or reduce the contract term so that it ends after a period of time specified by the Court

this applies to service contracts referred to in Annex B of this Act the value of which exceeds

the EU threshold as defined in Section 12 if the contracting authorityentity

1) has made a direct award of contract without the basis referred to in this Act and the proce-dures referred to in Section 81 not having been complied with in the direct award

2) has concluded the contract although there is an obligation in the contract to observe the standstill period

3) has concluded the contract contrary to Section 92 although the procurement case has been submitted to the Market Court for a decision or

4) has concluded the contract in a competition based on a framework agreement on the basis

of Section 80 without observing the standstill period and if a breach has been committed in the

competition in respect of Section 27(2 or 3) such that this has affected the chances of the ap-pellant to win the contract

In addition a requirement in the situation referred to in subsection 3 points 2 and 3 above is

that the contracting authorityentity has made another infringement contrary to this Act which

has affected the chances of the appellant to win the contract

With respect to issuing a sanction the Market Court shall take into account the nature of the

mistake or omission by the contracting authorityentity and the value of the contract in ques-

tion The sanction shall not exceed 10 percent of the value of the contract

Section 101

Allocation of sanctions and cumulative effect

If one contracting authorityentity has been responsible for the contracting procedure on be-

half of the other contracting authorities the obligation to compensate for legal costs can be

placed on the contracting authorityentity that acted on behalf of the other contracting authori-

ties

With respect to the sanctions referred to in this Act the Market Court shall take into considera-

tion that the cumulative effect may not become unreasonable for the contracting authori-

tyentity or its contracting party

42

Section 102

Conditional fine

The Market Court may impose a conditional fine in order to underline the importance of com-

plying with the prohibitions or obligations referred to in this Act The provisions of the Act on

Conditional Fines (11131990) shall apply to the imposing of and sentencing to the payment of

conditional fines

If one contracting authorityentity has been responsible for the contracting procedure on be-

half of the other contracting authorities the obligation to compensate for costs can be placed

on the contracting authorityentity that acted on behalf of the other contracting authorities

Section 103

Notification of the Market Courts ruling

The ruling of the Market Court along with the instructions for appeal shall be verifiably notified under the provisions of the Administrative Judicial Procedure Act

With the consent of the appellant and the contracting authorityentity the Market Courts deci-

sion together with the instructions for appeal may be publicised using the electronic contact

information the aforementioned parties have provided to the Market Court

When electronic contact information is used the appellant and the contracting authorityentity

shall be deemed to have been notified of the decision and instructions for appeal on the date

on which the message concerning the matter is available in the recipientsrsquo reception equipment

so that the message can be handled The provisions of Section 77(1) shall apply to electronic

notification

Section 104

Prohibition to appeal

A case that is within the jurisdiction of the Market Court cannot be appealed against under the

provisions of the Local Government Act or the Administrative Judicial Procedure Act

A decision or ruling concerning a contract which has been excluded from the scope of applica-

tion of this Act on the basis of Section 6(2) and Sections 78 or 13 may not be appealed under

the Administrative Judicial Procedure Act or the Local Government Act The subcontractor may

not under the Administrative Judicial Procedure Act or the Local Government Act appeal the

decision or action taken by the contracting authorityentity concerning the subcontract

Section 105

Appeals against the decisions of the Market Court

Appeals against a ruling of the Market Court can be lodged in the Supreme Administrative Court in accordance with the Administrative Judicial Procedure Act

As referred to in Section 93(1) an appeal cannot be lodged against the ruling by the Market

Court in the Supreme Administrative Court A ruling by the Market Court does not prevent the

case from being reconsidered by the Market Court if the grounds for the previous ruling have

changed

If the Market Court has ruled that it will not grant the processing authorisation referred to in

Section 88(3) then an appeal against this ruling can only be lodged if the Supreme Adminis-

trative Court grants a leave to appeal

43

Section 106

Application of the Administrative Judicial Procedure Act

The Administrative Judicial Procedure Act shall apply to appeals unless otherwise provided by this Act

Section 107

Implementation of rulings

A ruling of the Market Court has to be observed notwithstanding any appeal unless the Su-

preme Administrative Court orders otherwise The ruling of the Market Court issuing the sanc-

tion referred to in Section 96(1)(4ndash7) may only be implemented on the basis of a final ruling

The implementation of a ruling concerning a sanction shall be supervised by the Legal Register

Centre The Legal Register Centre must be informed of any ruling by the Market Court and

Supreme Administrative Court to issue a sanction

Section 108

Compensation for damages

Those who cause damage to a candidate tenderer or supplier shall be liable to pay compensa-

tion for the damage they have caused while acting in breach of this Act or any regulations based thereon or the European Union law

However when the claim for damages refers to costs incurred as a result of the tendering pro-

cedure the candidate or tenderer is entitled to compensation if it can provide proof of the in-

correct procedure as defined in subsection 1 and that had the procedure been correct it would have had a genuine chance to win the contract

In respect of the cases defined in subsection 1 and 2 a Court of first instance shall be the

competent court in accordance with Chapter 10 of the Code of Judicial Procedure

Chapter 16

Further provisions

Section 109

Disclosure of information

Notwithstanding the provisions concerning confidentiality provided for in the Act on the Open-

ness of Government Activities or in any other act the contracting authorityentity shall supply

statistics and other information concerning the different stages of the contract and performed

contracts to the Finnish authorities and European Union bodies to monitor contracts and ex-

change information on the scale and to the time limit required by European Union law Pursu-

ant to this Act the Ministry of Economic Affairs and Employment has the right to forward in-

formation it has received to the European Union authorities notwithstanding the regulations on confidentiality

The contracting authorityentity shall draw up a written report on each contract and framework

agreement which includes essential information on the contract contract procedure and the

candidates and tenderers who participated as well as on the decisions made in connection with

44

the contract The report and its main content shall be forwarded on request to the European

Commission A separate report is not required if corresponding information can be found in the

contract decision or other documents

To document the course of the realised contract procedure the contracting authorityentity

shall implement necessary measures in an electronic format

More specific rules are laid down in a Government decree on the obligation to provide statistics

and the responsibility of the contracting authorityentity to draw up reports on contract proce-

dures and contract decisions as referred to in subsection 1 which are to be forwarded to the

European Union bodies

Section 110

Entry into force and transitional provisions

This Act enters into force on 1 January 2012

If a contract procedure is started before the entry into force of this Act the provisions that

were in force at the time when this Act entered into force shall be applied The contract proce-

dure shall be deemed to have commenced when the contract notice was published A contract

which does not require the publication of the contract notice shall be deemed to have com-

menced when the invitation to tender or a meeting is sent or negotiations with suppliers begin

Measures necessary for the implementation of this Act may be undertaken before the Actrsquos

entry into force

45

ANNEX A

Primary services

Group No

Matter CPV Reference No

1 Maintenance and repair services 50000000-5 50100000-6-50884000-4 (except 50310000-1-50324200-4 and 50116510-9 50190000-3 50229000-6 50243000-0) and 51000000-9-51900000-1

2 Services related to international military assistance

75211300-1

3 Defence services military defence services and civil defence services

75220000-4 75221000-1 75222000-8

4 Investigation and security services 79700000-1-79720000-7

5 Land transport services 60000000-8 60100000-9-60183000-4 (except 60160000-7 60161000-4) and 64120000-3-64121200-2

6 Air transport services for passengers and freight except transport of mail

60400000-2 60410000-5-60424120-3 (except 60411000-2 60421000-5) 60440000-4-60445000-9 and 60500000-3

7 Transport of mail by land and by air 60160000-7 60161000-4 60411000-2 60421000-5

8 Railway transport services 60200000-0-60220000-6

9 Sea transport services 60600000-4-60653000-0 and 63727000-1-63727200-3

10 Support and auxiliary transport services 63100000-0-63111000-0 63120000-6-63121100-4 63122000-0 63512000-1 and 63520000-0-6370000-6

11 Telecommunications services 64200000-8-64228200-2 72318000-7 and 72700000-7-72720000-3

12 Financial services insurance services 66500000-5-66720000-3

13 Data-processing and related services 50310000-1-50324200-4 72000000-5-72920000-5 (except 72318000-7 and 72700000-7-72720000-3) 79342410-4 9342410-4

14 Research and development services(sup1) and evaluation tests

73000000-2-73436000-7

15 Accounting auditing and bookkeeping services

79210000-9-79212500-8

16 Management consulting(sup2) and related services

73200000-4-73220000-0 79400000-8-79421200-3 and 79342000-3 79342100-4 79342300-6 79342320-2 79342321-9 79910000-6 79991000-7 98362000-8

17 Architectural services engineering services and integrated engineering services urban planning and landscape architectural services related scientific and technical consulting services technical testing and analysis services

71000000-8-71900000-7(except 71550000-8) and 79994000-8

18 Building cleaning services and building and property management services

70300000-4-70340000-0 and 90900000-6-90924000-3

19 Sewage and refuse disposal services 90400000-1 to 90743200-9 (except 90712200-3)

46

sanitation and similar services 90910000-9-90920000-2 and 50190000-3 50229000-6 50243000-0

20 Training and simulation services in the fields of defence and security

80330000-6 80600000-0 80610000-3 80620000-6 80630000-9 80640000-2 80650000-5 80660000-8

(sup1) Except the research and development services referred to in Section 13(2)(5) (sup2) Except arbitration and conciliation services ANNEX B Secondary services

Group No

Matter CPV Reference No

21 Hotel and restaurant services 55100000-1-55524000-9 and 98340000-8-98341100-6

22 Support and auxiliary transport services 63000000-9-63734000-3 (except 63711200-8 63712700-0 63712710-3) 6372700-1-63727200-3 and 98361000-1

23 Legal services 79100000-5-79140000-7

24 Employment and personnel recruitment services(sup1)

79600000-0-79635000-4 (except 79611000-0 79632000-3 79633000-0) and 98500000-8-98514000-9

25 Health and social services 79611000-085000000-9 and -85323000-9 (except 85321000-5 and 85322000-2)

26 Other services

(sup1) Except employment contracts

47

ANNEX C NACEsup1ordm

Main category F CONSTRUCTION CPV code

2-digit level

3-digit level

4-digit level

Description Comments

45 Construction This two-digit level includes the following construction of new buildings and works reconstruction and common repairs

45000000

451 Site preparation

45100000

4511 Demolition and wreck-ing of buildings earth moving

This four-digit level includes the following - demolition of buildings and other structures - clearing of building sites and earth moving site excavation landfill and levelling trench dig-ging quarrying blasting etc - site preparation for mining

- overburden removal and other development and prepa-ration of mines and mining sites

This four-digit level also includes - building site underdrainage - drainage of agricultural or forestry land

45110000

4512 Test drilling This four-digit level includes the following - test drilling test boring and sampling for construction geophysical geological or similar purposes This four-digit level excludes the following - drilling of oil or gas wells comp 1120 - water well drilling 4525

45120000

sup1deg Council regulation (EEC) No 303790 (Official Journal of the European Union 293 24 October 1990 p 1) on the statistical classification of economic activities in the European Community issued on 9 October 1990 regulation as amended by Commission Regulation (EEC) No 76193 (Official Journal of the European Union L 83 3 April 1993 p 1) If there are differences of opinion between CPV and NACE NACE nomenclature shall apply

48

- shaft sinking comp 4525 - oil and gas field exploration geophysical geological and seismic surveying comp 7420

452 Building complete constructions or parts thereof

45200000

4521 Building work This four-digit level includes the following - Construction of all types of buildings - civil engineering and hydraulic engineering works - building of bridges including those for elevated highways metro tunnels - construction of long-distance pipelines communication cables and long-distance networks for power lines - construction of long-distance pipelines telecommunication ca-bles and municipal network power lines related installation work - on-site assembly and erection of pre-fabricated constructions This four-digit level excludes the following - services related to oil and gas extraction comp 1120 - erection of complete prefabricat-ed constructions from self-manufactured parts not of con-crete comp 20 26 28 - construction work other than buildings for stadiums swimming pools gymnasiums tennis courts golf courses and other sports installations comp 4523 building installation comp 453 - building completion comp 454 - architectural and engineering services comp 7420 - project management for construction comp 7420

45210000 Except 45213316 45220000 45231000 45232000

4522 Erection and covering of roofs

This four-digit level includes the following - erection of roofs - roof covering - waterproofing

45261000

49

4523 Construction of highways streets airports and sports equipment

This four-digit level includes the following - construction of highways streets other vehicular and pedestrian ways - construction of railways - construction of airfield runways - construction work other than build-ings for stadiums swimming pools gymnasiums tennis courts golf courses and other sports installations - painting of markings on road surfaces and car parks This four-digit level excludes the following - preliminary earth moving comp 4511

45212212 and DA03 45230000 except 45231000 45232000 45234115

4524 Construction of water projects

This four-digit level includes the following building works - construction of waterways harbour and river works marinas locks etc - construction of dams and breakwaters - dredging - subsurface work

45240000

4525 Other construction work

This four-digit level includes the following - construction activities specialising in one aspect common to different kinds of structures requiring specialised skill or equipment - construction of foundations including pile driving - water well drilling and construction shaft sinking - erection of non-self-manufactured steel frame elements - steel bending - bricklaying and stone setting - erecting and dismantling of scaffolds and work platforms including rental of scaffolds and work platforms - erection of chimneys and industrial ovens This four-digit level excludes the following - rental of scaffolds without erecting and dismantling comp 7132

45250000 45262000

453 Building installation 45300000

4531 Installation of electri-cal wiring and fittings

This four-digit level includes the installation in buildings or other

45213316 45310000

50

construction projects of - electrical wiring and fittings - telecommunications systems - electrical heating systems - residential antennas - fire alarms - burglar alarm systems - lifts and escalators - lightning conductors etc

Except 45316000

4532 Insulation work This four-digit level includes the following - installation in buildings or other construction projects of thermal sound or vibration insulation This four-digit level excludes the following - waterproofing comp 4522

45320000

4533 Plumbing This four-digit level includes the installation in buildings or other construction projects of the following - plumbing and sanitary equipment and fittings - gas fittings - heating ventilation refrigeration or air-conditioning equipment and ducts - sprinkler systems This four-digit level excludes the following - installation of electrical heating systems comp 4531

45330000

4534 Other installation work

This four-digit level includes the fol-lowing - installation or other construction of illumination and signalling systems for roads railways airports and harbours - installation in buildings or other construction projects of fittings and fixtures

45234115 45316000 45340000

454 Building completion 45400000

4541 Plastering This four-digit level includes the following - application in building or other construction projects of interior and exterior plaster or stucco and other similar lathing materials

45410000

4542 Joinery installation This four-digit level includes the following - installation of non-self-manufactured doors windows door

45420000

51

and window frames fitted kitchens staircases and shop fittings made of wood or other materials - completion of interiors such as ceilings wooden wall coverings wall paneling installation of movable partitions etc This four-digit level excludes the following - laying of parquet and other wooden floor coverings comp 4543

52

4543 Floor covering and wall upholstery

This four-digit level includes the following - covering or tiling of buildings or other structures using - ceramic concrete or stone wall or floor tiles or stones - parquet or other wooden floor covering - wall-to-wall carpeting or linoleum also rubber or plastic floor covering - wall or floor covering made of mosaic marble granite or slate - wallpaper

45430000

4544 Painting and glazing This four-digit level includes the following - interior and exterior painting of buildings - exterior painting of other structures - installation of mirrors glass etc This four-digit level excludes the following - installation of windows comp 4542

45440000

4545 Other building completion

This four-digit level includes the following - construction of private swimming pools - cleaning the exterior surfaces of buildings using steam sandblasting or other similar method - other building completion work not classified elsewhere This four-digit level excludes the following - cleaning of buildings and other structures comp 7470

45212212 and DA03 45450000

455 Rental of construction or dismantling equip-ment with operators

45500000

4550 Rental of construction or dismantling equip-ment with operators

This four-digit level excludes the following - rental of construction or dismantling machines and equipment without operators comp 7132

45500000

30

Section 69

General rules of procedure

The contracting authorityentity shall aim to take advantage of the prevailing competitive con-

ditions and award the contract primarily through competitive bidding A sufficient number of

tenders shall be requested in terms of the scope and subject matter of the contract to ensure

competition

A public notice shall be issued however the publication obligation does not apply in the case

of contracts that fulfil the criteria set in Article 346(1)(b) of TFEU

The contracting authorityentity may request a tender directly from one supplier if competitive

bidding cannot be carried out for reasons justified on the basis of national defence state secu-rity or security of supply

The contracting authorityentity may also request a tender directly from one supplier if

1) no tenders or no suitable tenders were received in the competitive bidding carried out

previously a further requirement is that the conditions of the original invitation to ten-

der are not fundamentally changed

2) for technical reasons or for reasons connected with the protection of exclusive rights the contract may be awarded only to a particular supplier

3) for reasons of urgency brought about by a crisis it is not possible to carry out competi-tive bidding

4) execution of the contract is absolutely necessary and competitive bidding cannot be

carried out for reasons of extreme urgency brought about by events unforeseeable by

and independent of the contracting authorityentity

5) the product to be acquired are manufactured purely for scientific or research purposes

and it is not a matter of establishing commercial viability of the products or to recover research and development costs

6) the object of the contract is a research and development service that has not been ex-cluded from the scope of this Act on the basis of Section 8

7) the contract is necessary in order to determine whether the final result of the research

and development service is suitable to be used as intended by the contracting authori-tyentity

8) the object of the contract consists of supplies quoted and purchased on a commodity market

9) the supplies are purchased on particularly advantageous terms from either a supplier

winding up its business activities or from the receivers of a bankruptcy or liquidators in

insolvency proceedings an arrangement with creditors or a similar procedure

10) the object of the contract is a second-hand product

11) the object of the contract is based on a supplementary contract right incorporated into

the contract

12) the object of the contract is additional deliveries by the original supplier which are in-

tended either as a partial replacement of existing supplies or installations or as the ex-

tension of existing supplies or installations and a change of supplier would result in in-

compatibility or disproportionate technical difficulties in operation and maintenance

13) the object of the contract is additional works or services not included in the project ini-

tially but which have through unforeseen circumstances become necessary for the per-

formance of the works or services as originally described

31

Section 70

Negotiations with tenderers and specifying the tender and the invitation to tender

The contracting authorityentity may discuss all aspects of the contract with the tenderers dur-

ing the negotiation provided that the negotiations do not result in changing constituent ele-

ments in the invitation to tender in a discriminating manner or in a manner which distorts

competition

The purpose of the negotiations shall be to select the best tender in accordance with Section

73(2) or to determine one or more alternative solutions for contract implementation before

sending the final invitation to tender The dialogue may take place in successive stages in or-

der to reduce the number of tenders or solutions to be discussed during the dialogue by apply-

ing the comparison criteria indicated in the invitation to tender or project description

In competitive bidding the requirement for negotiations shall be that the negotiations and the

criteria to be complied with during the negotiations have been stated in the invitation to tender

or the project description

The contracting authorityentity shall ensure equal treatment of all candidates and tenderers

during the negotiations and shall not provide information in a manner that may compromise

the equal treatment of the participants in competitive bidding

Section 71

Invitation to tender

The invitation to tender shall be submitted in writing and drawn up to be sufficiently clear in

order to enable submission of commensurate and mutually comparable tenders The invitation

to tender shall contain all information that is particularly important in terms of the contracting

procedure and submitting the tender

The invitation to tender shall include the award criterion and where the criterion for the award is that of the economically most advantageous tender the comparison criteria and the ranking thereof The invitation to tender shall indicate a reasonable time allotted for the tenderers to submit a tender taking into consideration the scope and subject matter of the contract

The contracting authorityentity may charge a reasonable fee for the invitation-to-tender doc-

uments to recover the costs arising from the exceptionally extensive scope of the documenta-

tion the materials related thereto or other similar factors

Section 72

Drawing up the invitation to tender and submitting the tender

The invitation to tender and the tenders based thereon shall be drawn up in writing They may be executed orally only in exceptional circumstances if the written procedure is justifiably not appropriate If the invitation to tender or the tenders are not drawn up in writing a record shall be kept of the negotiations held with the tenderers the record shall indicate the infor-mation impacting the course of the procedure and the position of the tenderers

Section 73

Selection of a tender and a tenderer rejecting a tender

The contracting authorityentity may exclude from the competitive bidding any supplier which

taking into consideration the scope and object of the contract and other criteria does not pos-

sess the qualifications to carry out the contract The contracting authorityentity may exclude

32

from the competitive bidding any tender submitted by a tenderer who does not possess the

qualifications to carry out the contract when taking into consideration the scope and object of

the contract and other criteria

The contracting authorityentity shall award the contract to the tenderer whose tender has the

lowest price or complies with the comparison criteria set in the invitation to tender and is eco-

nomically the most advantageous

The contracting authorityentity may reject a tender which does not fulfil the essential condi-

tions set in the invitation to tender or has an abnormally low price in terms of the subject mat-

ter and scope of the contract Before it may reject a tender the contracting authorityentity

shall request in writing details of the constituent elements of a tender that is abnormally low in

price

PART IV

General provisions on decisions concerning contract awards conclusion of contracts

procurement rectification public access to the contract documents and further provi-sions

Chapter 11

Decisions concerning the award of contracts and notification thereof

Section 74

Decision concerning the award

The contracting authorityentity shall provide in writing the decisions affecting the position of

the candidates and tenderers and the results of the tendering procedure including the grounds for the outcome of the procedure

The decision or the related documentation shall state the factors that fundamentally affected

the outcome including the grounds for rejecting the candidate tenderer or tender and the

grounds on which the accepted contracts were compared As regards a decision concerning

asking for bids for a contract based on a framework arrangement stating the facts showing

that the selection and award criteria have been applied as required under Section 27 shall

suffice If the standstill period referred to in Section 79 applies to the contract the decision or

the related documents shall also state the period of time after which the contract may be awarded

The contracting authorityentity is not required to make a decision referred to in this Section

concerning a contract for the additional supplies referred to in Section 23 or Section 69(4)(12)

and additional service or contract referred to in (13) or the temporary arrangements for a con-tract referred to in Section 95

In contracts based on framework agreements the contracting authorityentity is not required to make the decision referred to in this Section if

1) the contract is awarded in accordance with the conditions laid down in the framework

agreement without asking for bids or

2) the competitive bidding is based on a framework agreement when the value of the contract

does not exceed the EU threshold

33

Section 75

Suspending the contract award procedure

The contract award procedure can be suspended only for verifiable and justifiable reason

The provisions of Section 74 concerning contract ruling shall apply to the suspension of the

contract award procedure

Section 76

Appeal instructions and instructions for request for rectification

Instructions for appeal shall accompany the decisions made by the contracting authori-

tyentity explaining how to refer a case to the Market Court for consideration contact infor-

mation of the contracting authorityentity for the notice referred to in Section 90 and instruc-

tions for seeking rectification (petition instructions) explaining how the candidate or tenderer can have the case submitted for reconsideration through procurement rectification

With regard to the issuing and amending appeal and petition instructions the provisions of

Chapter 3 of the Administrative Judicial Procedure Act (5861996) shall apply in terms of ap-

peals and the provisions of Chapter 7 of the Administrative Procedure Act (4342003) shall

apply in terms of petition instructions

Section 77

Notification of the decision concerning the contract award

The decision of the contracting authorityentity including the grounds for the decision and the

appeal and petition instructions shall be submitted in writing to the parties concerned The de-

cision including the aforementioned documents shall be submitted using the electronic con-

tact information which the candidate or tenderer has given to the contracting authorityentity

When using the electronic contact information the candidate and tenderer shall be considered

to have received notice of the decision and the accompanying documents on the date on

which the electronic message containing the aforementioned documents is available in the re-

cipients reception equipment such that the message can be handled Such a point in time shall

mean the date on which the message was sent unless a reliable explanation concerning the

malfunction of telecommunications links or another analogous reason because of which the

electronic message reached the recipient later When electronic notification is used the con-

tracting authorityentity shall include in the message a separate note concerning the date

when the message was sent

The decision including the grounds for it and the appeal and petition instructions may also be

sent via regular mail under the Administrative Procedure Act Candidates and tenderers shall

be considered to have received notification of the decision and the accompanying documents

on the seventh day from the date on which they were sent unless the candidate or tenderer

proves that the notification occurred at a later date

Notification on the decision of the contracting authorityentity shall be issued without undue

delay at the latest 15 days from the date on which the contracting authorityentity receives a written request concerning notification on the decision that was made

34

Chapter 12

Public contract

Section 78

Concluding a public contract

Having made the decision to award a public contract the contracting authorityentity shall

conclude the contract The contract is concluded upon signing a written agreement

Section 79

Standstill period

In the case of a contract above the EU threshold referred to Section 12 above the contract can

be concluded at the earliest 21 days from the date when the candidate or tenderer received or is considered to have received the decision and instructions for appeal (standstill period)

A standstill period shall not be applied in direct contract awards

The provisions of Section 92 shall apply to the effect of an appeal on concluding a contract

Section 80

Exceptions to the compliance with the standstill period

The standstill period need not be upheld if

1) the contract concerns a procurement carried out on the basis of the framework agreement in accordance with Section 27

2) the contract is awarded to the tenderer who submitted the only acceptable tender and no

other tenderers or candidates remain in the competitive bidding whose position would be af-

fected by the selection of a co-contractor

3) the contract concerns a procurement referred to in Section 68(2)

Section 81

Notification of direct awards and conclusion of public contracts

In direct awards exceeding the EU threshold the contracting authorityentity may after hav-

ing made the award decision send a notice for publication concerning the direct award of con-

tract before concluding the contract In that case the contract can be concluded at the earli-est 14 days after the publication of the notice in the Official Journal of the European Union

Chapter 13

Procurement rectification

Section 82

Rectification of a procurement

The contracting authorityentity may remove an incorrect decision or annul an award decision

made during the contracting procedure concerning the legal status of the candidates or ten-

35

derers and make a new decision (procurement rectification) if the award decision or other deci-

sion reached during the contracting procedure is based on an error that occurred in the appli-cation of the law

Amending an award decision or other decision does not require the consent of the party con-

cerned However an award decision or other decision cannot be amended through procure-

ment rectification if the contract has been concluded

Section 83

Initiation of procurement rectification

The contracting authorityentity may take up a procurement rectification on its own initiative

or in response to a demand of the party in question The contracting authorityentity shall noti-fy the concerned parties immediately of the initiation of a procurement rectification

A subcontractor does not have the status of a concerned party referred to in subsection 1 of this section in terms of the matter concerning the contract

The concerned party shall present the demand within 14 days after receipt of the notification

of the award decision or other decision made by the contracting authorityentity during the

contracting procedure The contracting authorityentity itself may amend the award decision or

other decision no later than 60 days after the date the decision concerning the procurement rectification is made

Appealing the case to the Market Court does not prevent a procurement rectification or its pro-

cessing A procurement rectification may also apply to a decision of the contracting authori-

tyentity that has become legally binding if the case has not been submitted to the Market

Court for ruling

Section 84

Effect of the processing of procurement rectification on the proceedings in the Mar-ket Court

The initiation and processing of a procurement rectification do not affect the time limit within

which the concerned party has the right pursuant to this Act to submit an appeal against the

decision to the Market Court

If the award decision or other decision that was reached during the contract award procedure

is to be amended and has been appealed against before the Market Court the Market Court

shall be notified of the processing of the case through procurement rectification and informed

of the decision reached In processing a procurement rectification the contracting authori-

tyentity may prohibit the enforcement of the award decision or other decision or order it to be

suspended The Market Court shall be notified of a prohibition or suspension of enforcement if an appeal has been lodged against the decision in the Market Court

If the contracting authorityentity amends its award decision or other decision by means of a

procurement rectification such that as a result the appellant to the Market Court no longer has

the need for judicial relief or the need for a justified decision the Market Court may decline to

process such a case without giving a ruling on the principal claim

Section 85

The application of procurement rectification to other contracts

A procurement rectification can also be applied to amend an award decision or other decision

made by the contracting authorityentity during the contracting procedure to which this Act

36

shall not apply pursuant to Section 6(2) and Sections 7 8 or 13 A decision made on account

of such a contract rectification may not be appealed against in the Market Court or under the Administrative Judicial Procedure Act or Local Government (Act 3651995)

Chapter 14

Public access to the contract documents

Section 86

Application of the provisions concerning public access to the contract documents

The Act on the Openness of Government Activities (6211999) shall apply to public access to

the documents of the contracting authorityentity and the fees charged for the documents if

the contracting authorityentity is the authority referred to in Section 4 of the aforementioned

Act or if it is obliged to comply with that Act on the basis of a provision contained elsewhere in the Act

In terms of the right of parties other than the participants in the competitive bidding conducted

by the contracting authorityentity referred to in subsection 1 to have access to the docu-

ments drawn up and received for processing of the tender and the confidentiality obligation of

those employed by the contracting authorityentity the provisions of the Act on the Openness

of Government Activities shall apply to the right of concerned parties to have access to the

document to how public access to the document is determined and to the processing and resolving of the matter concerning access to information

The decision of the contracting authorityentity which has resolved the matter concerning ac-

cess to information can be appealed in accordance with the provisions of Section 33 of the Act

on the Openness of Government Activities The Supreme Administrative Court in whose judicial

district the contracting authorityentity is located is the competent Supreme Administrative

Court for considering the appeal submitted on the basis of a decision made by a party other

than the contracting authorityentity acting as an authority

Chapter 15

Appealing and the implications thereof

Section 87

Parties entitled to appeal

A concerned party may appeal the matter to the Market Court by issuing a complaint A sub-

contractor does not have the position of an interested party referred to in subsection 1 of this Section in terms of the matter concerning the contract

In matters concerning control procedures of the European Union the Ministry of Economic Af-

fairs and Employment may also refer the matter to the Market Court for consideration

Section 88

Object of the appeal

An appeal may be lodged before the Market Court against an award decision of the contracting

authorityentity referred to in this Act or other decision reached by the contracting authori-

tyentity during the contracting procedure which affects the status of the candidate or the ten-derer

37

An appeal may not be lodged before the Market Court against an award decision or other deci-

sion of the contracting authorityentity which concerns only the preparation of the contracting

procedure An appeal may not be lodged against a decision or other measure taken by the

supplier selected as a contracting party concerning a subcontracting agreement or an award

decision or determination made by the contracting authorityentity during the implementation of the contract

A contract based on a framework agreement referred to in Section 27 above and a contract

referred to in Section 68(2) may not be appealed unless a processing authorisation is issued by the Market Court The authorisation shall be issued if

1) the processing of the case is important in terms of applying the Act in other similar matters

or

2) there is a cogent reason for it related to the procedures of the contracting authorityentity

Section 89

Time period for appeal

Unless otherwise prescribed in this Section an appeal must be lodged in writing within 14 days

from the date when the candidate or tenderer received the notice concerning the contract with the instructions for appeal

If the contracting authorityentity has concluded a public contract after the contract decision

was issued on the basis of Section 80 point 1 without complying with the standstill period

the appeal shall be lodged within 30 days from the date when the tenderer has received notice

of the decision with the instructions for appeal

An appeal before the Market Court shall be lodged within six months of the date of the contract

decision provided that the candidate or tenderer has received notice of the contract decision

and the contract decision or appeal instructions were materially deficient or the appeal instruc-tions have been missing altogether

If the contracting authorityentity has with regard to a contract above the EU threshold re-

ferred to in Section 12 above delivered a notice regarding a direct award of contract for publi-

cation in the Official journal of the European Union the complaint must be lodged within 14 days from the publication of the notice

If the notice referred to in subsection 4 has not been published the appeal concerning a direct award of contract shall be lodged

1) within 30 days of the date of publication of a contract-award notice has been published in

the Official Journal of the European Union or

2) within six months from the conclusion of the contract at the latest

Section 90

Notification of appeal to the contracting authorityentity and the list of procurement

cases

The appellant in a contract-related matter must notify the contracting authorityentity in writ-ing of referring the case to the Market Court for consideration

The notification must be delivered to the contracting authorityentity at the latest when the

complaint concerning the contract is delivered to the Market Court The notification shall be delivered to the address provided by the contracting authorityentity

38

The Market Court shall maintain and publish a list which is as comprehensive and up-to-date

as possible of contract-related matters pending at the Market Court

Section 91

The contracting authorityentity as the opponent and compensation of legal costs

In the proceedings regarding contract-related matters the contracting authorityentity shall be considered the opponent of the party or agency lodging the appeal

The provisions of Section 74 subsections 1 and 2 of the Administrative Judicial Procedure Act shall apply to the compensation of legal costs regarding contract-related matters

The provisions of Section 74 subsections 1 and 2 of the administrative Judicial Procedure Act

concerning public authorities or other public parties shall apply to the decision concerning the

liability to provide compensation for the legal costs of the opponent If one contracting authori-

tyentity has been responsible for the contracting procedure on behalf of the other contracting

authorities the obligation regarding compensation of legal costs may be placed on the con-

tracting authorityentity which acted on behalf of the other contracting authorities

Section 92

The effect of the appeal on concluding the contract

In case of a contract where the standstill period or the time limit referred to in section 81 must

be observed the contracting authorityentity may not conclude the contract if the matter has

been brought up for consideration by the Market Court

If the Market Court decides a case concerning enforcement or decides on the principal claim

before the standstill period or the time limit referred to in Section 81 has expired the contract-

ing authorityentity shall observe the standstill period or the time limit referred to in Section

81 until the end of the period notwithstanding the ruling of the Market Court

Section 93

Interim decisions of the Market Court

While the appeal is under consideration the Market Court may prohibit suspend or allow the

implementation of the decision concerning the contract award or order the contracting proce-

dure to be suspended otherwise as an interim measure for the duration of the proceedings in the Market Court

When deciding on the measure referred to in subsection 1 the Market Court shall take into

consideration that the harm caused by the measure to the opponent the rights of third par-

ties the security of the state or the public interest may not outweigh its benefits

However the decision prescribed in subsection 1 of this Section cannot be carried out in the case of a contract referred to in Section 68(2) of this Act

A legally trained member of the Market Court may alone issue a ruling as an interim measure

Section 94

Interim commitment of the contracting authorityentity

While the appeal is under consideration the contracting authorityentity may provide a written

undertaking to the Market Court stating that it will not enforce the decision concerning the contract for as long as the matter is pending in the Market Court

39

If the contracting authorityentity provides the Market Court with the undertaking referred to

in subsection 1 the Market Court will not issue without a specific reason a decision on the

obligation to interim prohibition on implementing the decision to award the contract

Section 95

Temporary organisation of a contract

If an appeal has been lodged against a contract before the Market Court the contracting au-

thorityentity may temporarily organise the contract by ordering it from a supplier who partici-

pated in the contracting procedure or from a previous supplier if the nature of the contract is

such that executing the contract cannot be postponed for the duration of the Market Court pro-ceedings

Temporary contract arrangements must not hinder the execution of the following items by means of a decision of the Market Court

1) the decision of the contracting authorityentity to cancel the contract in full or in part

2) prohibit the contracting authorityentity from applying any erroneous item included in the contract document or otherwise complying with an incorrect procedure or

3) require the contracting authorityentity to rectify its incorrect procedure

Section 96

Sanctions imposed by the Market Court

If during the contract procedure actions have been taken which are against this Act or the provisions based thereon or against European Union legislation the Market Court may

1) cancel the decision of the contracting authorityentity in full or in part

2) prohibit the contracting authorityentity from applying any erroneous item included in the contract document or otherwise complying with an incorrect procedure

3) require the contracting authorityentity to correct its erroneous procedure

4) order the contracting authorityentity to pay a compensatory fee to the party which would

have had a genuine chance to win the bidding competition had the procedure been correct

5) impose an ineffectiveness sanction on the contracting authorityentity

6) order the contracting authorityentity to pay an infringement fine to the state

7) reduce the contract term to end after a period of time specified by the Market Court has

passed

The provisions of Sections 97ndash100 shall apply to determining the sanctions mentioned in sub-

section 1 points 4ndash7 above When determining these sanctions the Market Court may consid-

er the contract to have been concluded on the basis of specific circumstances provided that

the contracting authorityentity has especially commenced the implementation of the contract

The ineffectiveness sanctions infringement fine and reduction of contract terms may only be

issued in contracts exceeding the EU thresholds referred to in Section 12 However an ineffec-tiveness sanction cannot be imposed in a service contract in accordance with Annex B

Only a compensatory fee can be imposed in a contract referred to in Section 68(2) of this Act

40

Section 97

Compensation

Provision for compensation may be made if the harm caused to the contracting authori-

tyentity rights of third parties state security and the public interest by the measure defined

in Section 96(1)(1ndash3) is considered to outweigh the benefits or if the petition has been initiat-

ed following the conclusion of the contract With respect to setting the amount of the compen-

satory fee account shall be taken of the nature of the infringement or omission by the con-

tracting authorityentity the value of the contract in question and the costs and damages in-

curred by the petitioner The Market Court may however decide not to prove for compensa-

tion if the contracting authorityentity has refrained from implementing the contract during the proceedings in the Market Court

Without a specific reason the amount of compensation shall not exceed 10 percent of the val-

ue of the contract

Section 98

Ineffectiveness

The Market Court may declare a contract ineffective if

1) the contracting authorityentity has made a direct award of contract without the basis re-ferred to in this Act and the procedures referred to in Section 81

2) the contracting authorityentity has concluded the contract although there is an obligation in the contract to observe a standstill period

3) the contracting authorityentity has concluded the contract contrary to Section 92 although

the procurement case has been submitted to the Market Court for a decision

In addition a requirement in the situation referred to in subsection 1 points 2 and 3 above is

that the contracting authorityentity has made another infringement contrary to this Act which has affected the chances of the appellant to win the contract

If the contracting authorityentity has concluded the contract in a competition based on the

framework agreement on the basis of Section 80 without observing the standstill period and if

a breach has been committed in the competition in respect of Section 27(2 or 3) such that this

has affected the chances of the appellant to win the contract the Market Court may declare the contract ineffective

The Market Court shall decide to which contractual obligations ineffectiveness shall apply Inef-

fectiveness shall apply only to unfulfilled contractual obligations

Section 99

Non-imposition of ineffectiveness

In the situations referred to in Section 98 above the Market Court may decide not to impose

ineffectiveness for compelling reasons related to the public interest or state security Economic

interests which are directly related to the contract may be deemed compelling only if ineffec-tiveness of the contract would exceptionally have inequitable consequences

The Market Court may not impose ineffectiveness if it would result in serious endangerment of

the implementation of a defence and security project essentially important with respect to

state security

Section 100

41

Infringement fines and reduction of the contract term

The Market Court may order a contracting authorityentity to pay the state an infringement

fine if

1) the Market Court has declared the contract ineffective

2) the contracting authorityentity has concluded the contract although there is an obligation in the contract to observe a standstill period

3) the contracting authorityentity has concluded the contract contrary to Section 92 although the procurement case has been submitted to the Market Court for a decision or

4) the Market Court has decided not to declare the contract ineffective for compelling reasons related to the public interest or state security in accordance with Section 99

In the situation referred to in subsection 1 point 4 above the Market Court may in addition to

or instead of imposing a sanction reduce the contract term so that it ends after a period of time specified by the Court

The Market Court may order a contracting authorityentity to pay the state an infringement

fine or reduce the contract term so that it ends after a period of time specified by the Court

this applies to service contracts referred to in Annex B of this Act the value of which exceeds

the EU threshold as defined in Section 12 if the contracting authorityentity

1) has made a direct award of contract without the basis referred to in this Act and the proce-dures referred to in Section 81 not having been complied with in the direct award

2) has concluded the contract although there is an obligation in the contract to observe the standstill period

3) has concluded the contract contrary to Section 92 although the procurement case has been submitted to the Market Court for a decision or

4) has concluded the contract in a competition based on a framework agreement on the basis

of Section 80 without observing the standstill period and if a breach has been committed in the

competition in respect of Section 27(2 or 3) such that this has affected the chances of the ap-pellant to win the contract

In addition a requirement in the situation referred to in subsection 3 points 2 and 3 above is

that the contracting authorityentity has made another infringement contrary to this Act which

has affected the chances of the appellant to win the contract

With respect to issuing a sanction the Market Court shall take into account the nature of the

mistake or omission by the contracting authorityentity and the value of the contract in ques-

tion The sanction shall not exceed 10 percent of the value of the contract

Section 101

Allocation of sanctions and cumulative effect

If one contracting authorityentity has been responsible for the contracting procedure on be-

half of the other contracting authorities the obligation to compensate for legal costs can be

placed on the contracting authorityentity that acted on behalf of the other contracting authori-

ties

With respect to the sanctions referred to in this Act the Market Court shall take into considera-

tion that the cumulative effect may not become unreasonable for the contracting authori-

tyentity or its contracting party

42

Section 102

Conditional fine

The Market Court may impose a conditional fine in order to underline the importance of com-

plying with the prohibitions or obligations referred to in this Act The provisions of the Act on

Conditional Fines (11131990) shall apply to the imposing of and sentencing to the payment of

conditional fines

If one contracting authorityentity has been responsible for the contracting procedure on be-

half of the other contracting authorities the obligation to compensate for costs can be placed

on the contracting authorityentity that acted on behalf of the other contracting authorities

Section 103

Notification of the Market Courts ruling

The ruling of the Market Court along with the instructions for appeal shall be verifiably notified under the provisions of the Administrative Judicial Procedure Act

With the consent of the appellant and the contracting authorityentity the Market Courts deci-

sion together with the instructions for appeal may be publicised using the electronic contact

information the aforementioned parties have provided to the Market Court

When electronic contact information is used the appellant and the contracting authorityentity

shall be deemed to have been notified of the decision and instructions for appeal on the date

on which the message concerning the matter is available in the recipientsrsquo reception equipment

so that the message can be handled The provisions of Section 77(1) shall apply to electronic

notification

Section 104

Prohibition to appeal

A case that is within the jurisdiction of the Market Court cannot be appealed against under the

provisions of the Local Government Act or the Administrative Judicial Procedure Act

A decision or ruling concerning a contract which has been excluded from the scope of applica-

tion of this Act on the basis of Section 6(2) and Sections 78 or 13 may not be appealed under

the Administrative Judicial Procedure Act or the Local Government Act The subcontractor may

not under the Administrative Judicial Procedure Act or the Local Government Act appeal the

decision or action taken by the contracting authorityentity concerning the subcontract

Section 105

Appeals against the decisions of the Market Court

Appeals against a ruling of the Market Court can be lodged in the Supreme Administrative Court in accordance with the Administrative Judicial Procedure Act

As referred to in Section 93(1) an appeal cannot be lodged against the ruling by the Market

Court in the Supreme Administrative Court A ruling by the Market Court does not prevent the

case from being reconsidered by the Market Court if the grounds for the previous ruling have

changed

If the Market Court has ruled that it will not grant the processing authorisation referred to in

Section 88(3) then an appeal against this ruling can only be lodged if the Supreme Adminis-

trative Court grants a leave to appeal

43

Section 106

Application of the Administrative Judicial Procedure Act

The Administrative Judicial Procedure Act shall apply to appeals unless otherwise provided by this Act

Section 107

Implementation of rulings

A ruling of the Market Court has to be observed notwithstanding any appeal unless the Su-

preme Administrative Court orders otherwise The ruling of the Market Court issuing the sanc-

tion referred to in Section 96(1)(4ndash7) may only be implemented on the basis of a final ruling

The implementation of a ruling concerning a sanction shall be supervised by the Legal Register

Centre The Legal Register Centre must be informed of any ruling by the Market Court and

Supreme Administrative Court to issue a sanction

Section 108

Compensation for damages

Those who cause damage to a candidate tenderer or supplier shall be liable to pay compensa-

tion for the damage they have caused while acting in breach of this Act or any regulations based thereon or the European Union law

However when the claim for damages refers to costs incurred as a result of the tendering pro-

cedure the candidate or tenderer is entitled to compensation if it can provide proof of the in-

correct procedure as defined in subsection 1 and that had the procedure been correct it would have had a genuine chance to win the contract

In respect of the cases defined in subsection 1 and 2 a Court of first instance shall be the

competent court in accordance with Chapter 10 of the Code of Judicial Procedure

Chapter 16

Further provisions

Section 109

Disclosure of information

Notwithstanding the provisions concerning confidentiality provided for in the Act on the Open-

ness of Government Activities or in any other act the contracting authorityentity shall supply

statistics and other information concerning the different stages of the contract and performed

contracts to the Finnish authorities and European Union bodies to monitor contracts and ex-

change information on the scale and to the time limit required by European Union law Pursu-

ant to this Act the Ministry of Economic Affairs and Employment has the right to forward in-

formation it has received to the European Union authorities notwithstanding the regulations on confidentiality

The contracting authorityentity shall draw up a written report on each contract and framework

agreement which includes essential information on the contract contract procedure and the

candidates and tenderers who participated as well as on the decisions made in connection with

44

the contract The report and its main content shall be forwarded on request to the European

Commission A separate report is not required if corresponding information can be found in the

contract decision or other documents

To document the course of the realised contract procedure the contracting authorityentity

shall implement necessary measures in an electronic format

More specific rules are laid down in a Government decree on the obligation to provide statistics

and the responsibility of the contracting authorityentity to draw up reports on contract proce-

dures and contract decisions as referred to in subsection 1 which are to be forwarded to the

European Union bodies

Section 110

Entry into force and transitional provisions

This Act enters into force on 1 January 2012

If a contract procedure is started before the entry into force of this Act the provisions that

were in force at the time when this Act entered into force shall be applied The contract proce-

dure shall be deemed to have commenced when the contract notice was published A contract

which does not require the publication of the contract notice shall be deemed to have com-

menced when the invitation to tender or a meeting is sent or negotiations with suppliers begin

Measures necessary for the implementation of this Act may be undertaken before the Actrsquos

entry into force

45

ANNEX A

Primary services

Group No

Matter CPV Reference No

1 Maintenance and repair services 50000000-5 50100000-6-50884000-4 (except 50310000-1-50324200-4 and 50116510-9 50190000-3 50229000-6 50243000-0) and 51000000-9-51900000-1

2 Services related to international military assistance

75211300-1

3 Defence services military defence services and civil defence services

75220000-4 75221000-1 75222000-8

4 Investigation and security services 79700000-1-79720000-7

5 Land transport services 60000000-8 60100000-9-60183000-4 (except 60160000-7 60161000-4) and 64120000-3-64121200-2

6 Air transport services for passengers and freight except transport of mail

60400000-2 60410000-5-60424120-3 (except 60411000-2 60421000-5) 60440000-4-60445000-9 and 60500000-3

7 Transport of mail by land and by air 60160000-7 60161000-4 60411000-2 60421000-5

8 Railway transport services 60200000-0-60220000-6

9 Sea transport services 60600000-4-60653000-0 and 63727000-1-63727200-3

10 Support and auxiliary transport services 63100000-0-63111000-0 63120000-6-63121100-4 63122000-0 63512000-1 and 63520000-0-6370000-6

11 Telecommunications services 64200000-8-64228200-2 72318000-7 and 72700000-7-72720000-3

12 Financial services insurance services 66500000-5-66720000-3

13 Data-processing and related services 50310000-1-50324200-4 72000000-5-72920000-5 (except 72318000-7 and 72700000-7-72720000-3) 79342410-4 9342410-4

14 Research and development services(sup1) and evaluation tests

73000000-2-73436000-7

15 Accounting auditing and bookkeeping services

79210000-9-79212500-8

16 Management consulting(sup2) and related services

73200000-4-73220000-0 79400000-8-79421200-3 and 79342000-3 79342100-4 79342300-6 79342320-2 79342321-9 79910000-6 79991000-7 98362000-8

17 Architectural services engineering services and integrated engineering services urban planning and landscape architectural services related scientific and technical consulting services technical testing and analysis services

71000000-8-71900000-7(except 71550000-8) and 79994000-8

18 Building cleaning services and building and property management services

70300000-4-70340000-0 and 90900000-6-90924000-3

19 Sewage and refuse disposal services 90400000-1 to 90743200-9 (except 90712200-3)

46

sanitation and similar services 90910000-9-90920000-2 and 50190000-3 50229000-6 50243000-0

20 Training and simulation services in the fields of defence and security

80330000-6 80600000-0 80610000-3 80620000-6 80630000-9 80640000-2 80650000-5 80660000-8

(sup1) Except the research and development services referred to in Section 13(2)(5) (sup2) Except arbitration and conciliation services ANNEX B Secondary services

Group No

Matter CPV Reference No

21 Hotel and restaurant services 55100000-1-55524000-9 and 98340000-8-98341100-6

22 Support and auxiliary transport services 63000000-9-63734000-3 (except 63711200-8 63712700-0 63712710-3) 6372700-1-63727200-3 and 98361000-1

23 Legal services 79100000-5-79140000-7

24 Employment and personnel recruitment services(sup1)

79600000-0-79635000-4 (except 79611000-0 79632000-3 79633000-0) and 98500000-8-98514000-9

25 Health and social services 79611000-085000000-9 and -85323000-9 (except 85321000-5 and 85322000-2)

26 Other services

(sup1) Except employment contracts

47

ANNEX C NACEsup1ordm

Main category F CONSTRUCTION CPV code

2-digit level

3-digit level

4-digit level

Description Comments

45 Construction This two-digit level includes the following construction of new buildings and works reconstruction and common repairs

45000000

451 Site preparation

45100000

4511 Demolition and wreck-ing of buildings earth moving

This four-digit level includes the following - demolition of buildings and other structures - clearing of building sites and earth moving site excavation landfill and levelling trench dig-ging quarrying blasting etc - site preparation for mining

- overburden removal and other development and prepa-ration of mines and mining sites

This four-digit level also includes - building site underdrainage - drainage of agricultural or forestry land

45110000

4512 Test drilling This four-digit level includes the following - test drilling test boring and sampling for construction geophysical geological or similar purposes This four-digit level excludes the following - drilling of oil or gas wells comp 1120 - water well drilling 4525

45120000

sup1deg Council regulation (EEC) No 303790 (Official Journal of the European Union 293 24 October 1990 p 1) on the statistical classification of economic activities in the European Community issued on 9 October 1990 regulation as amended by Commission Regulation (EEC) No 76193 (Official Journal of the European Union L 83 3 April 1993 p 1) If there are differences of opinion between CPV and NACE NACE nomenclature shall apply

48

- shaft sinking comp 4525 - oil and gas field exploration geophysical geological and seismic surveying comp 7420

452 Building complete constructions or parts thereof

45200000

4521 Building work This four-digit level includes the following - Construction of all types of buildings - civil engineering and hydraulic engineering works - building of bridges including those for elevated highways metro tunnels - construction of long-distance pipelines communication cables and long-distance networks for power lines - construction of long-distance pipelines telecommunication ca-bles and municipal network power lines related installation work - on-site assembly and erection of pre-fabricated constructions This four-digit level excludes the following - services related to oil and gas extraction comp 1120 - erection of complete prefabricat-ed constructions from self-manufactured parts not of con-crete comp 20 26 28 - construction work other than buildings for stadiums swimming pools gymnasiums tennis courts golf courses and other sports installations comp 4523 building installation comp 453 - building completion comp 454 - architectural and engineering services comp 7420 - project management for construction comp 7420

45210000 Except 45213316 45220000 45231000 45232000

4522 Erection and covering of roofs

This four-digit level includes the following - erection of roofs - roof covering - waterproofing

45261000

49

4523 Construction of highways streets airports and sports equipment

This four-digit level includes the following - construction of highways streets other vehicular and pedestrian ways - construction of railways - construction of airfield runways - construction work other than build-ings for stadiums swimming pools gymnasiums tennis courts golf courses and other sports installations - painting of markings on road surfaces and car parks This four-digit level excludes the following - preliminary earth moving comp 4511

45212212 and DA03 45230000 except 45231000 45232000 45234115

4524 Construction of water projects

This four-digit level includes the following building works - construction of waterways harbour and river works marinas locks etc - construction of dams and breakwaters - dredging - subsurface work

45240000

4525 Other construction work

This four-digit level includes the following - construction activities specialising in one aspect common to different kinds of structures requiring specialised skill or equipment - construction of foundations including pile driving - water well drilling and construction shaft sinking - erection of non-self-manufactured steel frame elements - steel bending - bricklaying and stone setting - erecting and dismantling of scaffolds and work platforms including rental of scaffolds and work platforms - erection of chimneys and industrial ovens This four-digit level excludes the following - rental of scaffolds without erecting and dismantling comp 7132

45250000 45262000

453 Building installation 45300000

4531 Installation of electri-cal wiring and fittings

This four-digit level includes the installation in buildings or other

45213316 45310000

50

construction projects of - electrical wiring and fittings - telecommunications systems - electrical heating systems - residential antennas - fire alarms - burglar alarm systems - lifts and escalators - lightning conductors etc

Except 45316000

4532 Insulation work This four-digit level includes the following - installation in buildings or other construction projects of thermal sound or vibration insulation This four-digit level excludes the following - waterproofing comp 4522

45320000

4533 Plumbing This four-digit level includes the installation in buildings or other construction projects of the following - plumbing and sanitary equipment and fittings - gas fittings - heating ventilation refrigeration or air-conditioning equipment and ducts - sprinkler systems This four-digit level excludes the following - installation of electrical heating systems comp 4531

45330000

4534 Other installation work

This four-digit level includes the fol-lowing - installation or other construction of illumination and signalling systems for roads railways airports and harbours - installation in buildings or other construction projects of fittings and fixtures

45234115 45316000 45340000

454 Building completion 45400000

4541 Plastering This four-digit level includes the following - application in building or other construction projects of interior and exterior plaster or stucco and other similar lathing materials

45410000

4542 Joinery installation This four-digit level includes the following - installation of non-self-manufactured doors windows door

45420000

51

and window frames fitted kitchens staircases and shop fittings made of wood or other materials - completion of interiors such as ceilings wooden wall coverings wall paneling installation of movable partitions etc This four-digit level excludes the following - laying of parquet and other wooden floor coverings comp 4543

52

4543 Floor covering and wall upholstery

This four-digit level includes the following - covering or tiling of buildings or other structures using - ceramic concrete or stone wall or floor tiles or stones - parquet or other wooden floor covering - wall-to-wall carpeting or linoleum also rubber or plastic floor covering - wall or floor covering made of mosaic marble granite or slate - wallpaper

45430000

4544 Painting and glazing This four-digit level includes the following - interior and exterior painting of buildings - exterior painting of other structures - installation of mirrors glass etc This four-digit level excludes the following - installation of windows comp 4542

45440000

4545 Other building completion

This four-digit level includes the following - construction of private swimming pools - cleaning the exterior surfaces of buildings using steam sandblasting or other similar method - other building completion work not classified elsewhere This four-digit level excludes the following - cleaning of buildings and other structures comp 7470

45212212 and DA03 45450000

455 Rental of construction or dismantling equip-ment with operators

45500000

4550 Rental of construction or dismantling equip-ment with operators

This four-digit level excludes the following - rental of construction or dismantling machines and equipment without operators comp 7132

45500000

31

Section 70

Negotiations with tenderers and specifying the tender and the invitation to tender

The contracting authorityentity may discuss all aspects of the contract with the tenderers dur-

ing the negotiation provided that the negotiations do not result in changing constituent ele-

ments in the invitation to tender in a discriminating manner or in a manner which distorts

competition

The purpose of the negotiations shall be to select the best tender in accordance with Section

73(2) or to determine one or more alternative solutions for contract implementation before

sending the final invitation to tender The dialogue may take place in successive stages in or-

der to reduce the number of tenders or solutions to be discussed during the dialogue by apply-

ing the comparison criteria indicated in the invitation to tender or project description

In competitive bidding the requirement for negotiations shall be that the negotiations and the

criteria to be complied with during the negotiations have been stated in the invitation to tender

or the project description

The contracting authorityentity shall ensure equal treatment of all candidates and tenderers

during the negotiations and shall not provide information in a manner that may compromise

the equal treatment of the participants in competitive bidding

Section 71

Invitation to tender

The invitation to tender shall be submitted in writing and drawn up to be sufficiently clear in

order to enable submission of commensurate and mutually comparable tenders The invitation

to tender shall contain all information that is particularly important in terms of the contracting

procedure and submitting the tender

The invitation to tender shall include the award criterion and where the criterion for the award is that of the economically most advantageous tender the comparison criteria and the ranking thereof The invitation to tender shall indicate a reasonable time allotted for the tenderers to submit a tender taking into consideration the scope and subject matter of the contract

The contracting authorityentity may charge a reasonable fee for the invitation-to-tender doc-

uments to recover the costs arising from the exceptionally extensive scope of the documenta-

tion the materials related thereto or other similar factors

Section 72

Drawing up the invitation to tender and submitting the tender

The invitation to tender and the tenders based thereon shall be drawn up in writing They may be executed orally only in exceptional circumstances if the written procedure is justifiably not appropriate If the invitation to tender or the tenders are not drawn up in writing a record shall be kept of the negotiations held with the tenderers the record shall indicate the infor-mation impacting the course of the procedure and the position of the tenderers

Section 73

Selection of a tender and a tenderer rejecting a tender

The contracting authorityentity may exclude from the competitive bidding any supplier which

taking into consideration the scope and object of the contract and other criteria does not pos-

sess the qualifications to carry out the contract The contracting authorityentity may exclude

32

from the competitive bidding any tender submitted by a tenderer who does not possess the

qualifications to carry out the contract when taking into consideration the scope and object of

the contract and other criteria

The contracting authorityentity shall award the contract to the tenderer whose tender has the

lowest price or complies with the comparison criteria set in the invitation to tender and is eco-

nomically the most advantageous

The contracting authorityentity may reject a tender which does not fulfil the essential condi-

tions set in the invitation to tender or has an abnormally low price in terms of the subject mat-

ter and scope of the contract Before it may reject a tender the contracting authorityentity

shall request in writing details of the constituent elements of a tender that is abnormally low in

price

PART IV

General provisions on decisions concerning contract awards conclusion of contracts

procurement rectification public access to the contract documents and further provi-sions

Chapter 11

Decisions concerning the award of contracts and notification thereof

Section 74

Decision concerning the award

The contracting authorityentity shall provide in writing the decisions affecting the position of

the candidates and tenderers and the results of the tendering procedure including the grounds for the outcome of the procedure

The decision or the related documentation shall state the factors that fundamentally affected

the outcome including the grounds for rejecting the candidate tenderer or tender and the

grounds on which the accepted contracts were compared As regards a decision concerning

asking for bids for a contract based on a framework arrangement stating the facts showing

that the selection and award criteria have been applied as required under Section 27 shall

suffice If the standstill period referred to in Section 79 applies to the contract the decision or

the related documents shall also state the period of time after which the contract may be awarded

The contracting authorityentity is not required to make a decision referred to in this Section

concerning a contract for the additional supplies referred to in Section 23 or Section 69(4)(12)

and additional service or contract referred to in (13) or the temporary arrangements for a con-tract referred to in Section 95

In contracts based on framework agreements the contracting authorityentity is not required to make the decision referred to in this Section if

1) the contract is awarded in accordance with the conditions laid down in the framework

agreement without asking for bids or

2) the competitive bidding is based on a framework agreement when the value of the contract

does not exceed the EU threshold

33

Section 75

Suspending the contract award procedure

The contract award procedure can be suspended only for verifiable and justifiable reason

The provisions of Section 74 concerning contract ruling shall apply to the suspension of the

contract award procedure

Section 76

Appeal instructions and instructions for request for rectification

Instructions for appeal shall accompany the decisions made by the contracting authori-

tyentity explaining how to refer a case to the Market Court for consideration contact infor-

mation of the contracting authorityentity for the notice referred to in Section 90 and instruc-

tions for seeking rectification (petition instructions) explaining how the candidate or tenderer can have the case submitted for reconsideration through procurement rectification

With regard to the issuing and amending appeal and petition instructions the provisions of

Chapter 3 of the Administrative Judicial Procedure Act (5861996) shall apply in terms of ap-

peals and the provisions of Chapter 7 of the Administrative Procedure Act (4342003) shall

apply in terms of petition instructions

Section 77

Notification of the decision concerning the contract award

The decision of the contracting authorityentity including the grounds for the decision and the

appeal and petition instructions shall be submitted in writing to the parties concerned The de-

cision including the aforementioned documents shall be submitted using the electronic con-

tact information which the candidate or tenderer has given to the contracting authorityentity

When using the electronic contact information the candidate and tenderer shall be considered

to have received notice of the decision and the accompanying documents on the date on

which the electronic message containing the aforementioned documents is available in the re-

cipients reception equipment such that the message can be handled Such a point in time shall

mean the date on which the message was sent unless a reliable explanation concerning the

malfunction of telecommunications links or another analogous reason because of which the

electronic message reached the recipient later When electronic notification is used the con-

tracting authorityentity shall include in the message a separate note concerning the date

when the message was sent

The decision including the grounds for it and the appeal and petition instructions may also be

sent via regular mail under the Administrative Procedure Act Candidates and tenderers shall

be considered to have received notification of the decision and the accompanying documents

on the seventh day from the date on which they were sent unless the candidate or tenderer

proves that the notification occurred at a later date

Notification on the decision of the contracting authorityentity shall be issued without undue

delay at the latest 15 days from the date on which the contracting authorityentity receives a written request concerning notification on the decision that was made

34

Chapter 12

Public contract

Section 78

Concluding a public contract

Having made the decision to award a public contract the contracting authorityentity shall

conclude the contract The contract is concluded upon signing a written agreement

Section 79

Standstill period

In the case of a contract above the EU threshold referred to Section 12 above the contract can

be concluded at the earliest 21 days from the date when the candidate or tenderer received or is considered to have received the decision and instructions for appeal (standstill period)

A standstill period shall not be applied in direct contract awards

The provisions of Section 92 shall apply to the effect of an appeal on concluding a contract

Section 80

Exceptions to the compliance with the standstill period

The standstill period need not be upheld if

1) the contract concerns a procurement carried out on the basis of the framework agreement in accordance with Section 27

2) the contract is awarded to the tenderer who submitted the only acceptable tender and no

other tenderers or candidates remain in the competitive bidding whose position would be af-

fected by the selection of a co-contractor

3) the contract concerns a procurement referred to in Section 68(2)

Section 81

Notification of direct awards and conclusion of public contracts

In direct awards exceeding the EU threshold the contracting authorityentity may after hav-

ing made the award decision send a notice for publication concerning the direct award of con-

tract before concluding the contract In that case the contract can be concluded at the earli-est 14 days after the publication of the notice in the Official Journal of the European Union

Chapter 13

Procurement rectification

Section 82

Rectification of a procurement

The contracting authorityentity may remove an incorrect decision or annul an award decision

made during the contracting procedure concerning the legal status of the candidates or ten-

35

derers and make a new decision (procurement rectification) if the award decision or other deci-

sion reached during the contracting procedure is based on an error that occurred in the appli-cation of the law

Amending an award decision or other decision does not require the consent of the party con-

cerned However an award decision or other decision cannot be amended through procure-

ment rectification if the contract has been concluded

Section 83

Initiation of procurement rectification

The contracting authorityentity may take up a procurement rectification on its own initiative

or in response to a demand of the party in question The contracting authorityentity shall noti-fy the concerned parties immediately of the initiation of a procurement rectification

A subcontractor does not have the status of a concerned party referred to in subsection 1 of this section in terms of the matter concerning the contract

The concerned party shall present the demand within 14 days after receipt of the notification

of the award decision or other decision made by the contracting authorityentity during the

contracting procedure The contracting authorityentity itself may amend the award decision or

other decision no later than 60 days after the date the decision concerning the procurement rectification is made

Appealing the case to the Market Court does not prevent a procurement rectification or its pro-

cessing A procurement rectification may also apply to a decision of the contracting authori-

tyentity that has become legally binding if the case has not been submitted to the Market

Court for ruling

Section 84

Effect of the processing of procurement rectification on the proceedings in the Mar-ket Court

The initiation and processing of a procurement rectification do not affect the time limit within

which the concerned party has the right pursuant to this Act to submit an appeal against the

decision to the Market Court

If the award decision or other decision that was reached during the contract award procedure

is to be amended and has been appealed against before the Market Court the Market Court

shall be notified of the processing of the case through procurement rectification and informed

of the decision reached In processing a procurement rectification the contracting authori-

tyentity may prohibit the enforcement of the award decision or other decision or order it to be

suspended The Market Court shall be notified of a prohibition or suspension of enforcement if an appeal has been lodged against the decision in the Market Court

If the contracting authorityentity amends its award decision or other decision by means of a

procurement rectification such that as a result the appellant to the Market Court no longer has

the need for judicial relief or the need for a justified decision the Market Court may decline to

process such a case without giving a ruling on the principal claim

Section 85

The application of procurement rectification to other contracts

A procurement rectification can also be applied to amend an award decision or other decision

made by the contracting authorityentity during the contracting procedure to which this Act

36

shall not apply pursuant to Section 6(2) and Sections 7 8 or 13 A decision made on account

of such a contract rectification may not be appealed against in the Market Court or under the Administrative Judicial Procedure Act or Local Government (Act 3651995)

Chapter 14

Public access to the contract documents

Section 86

Application of the provisions concerning public access to the contract documents

The Act on the Openness of Government Activities (6211999) shall apply to public access to

the documents of the contracting authorityentity and the fees charged for the documents if

the contracting authorityentity is the authority referred to in Section 4 of the aforementioned

Act or if it is obliged to comply with that Act on the basis of a provision contained elsewhere in the Act

In terms of the right of parties other than the participants in the competitive bidding conducted

by the contracting authorityentity referred to in subsection 1 to have access to the docu-

ments drawn up and received for processing of the tender and the confidentiality obligation of

those employed by the contracting authorityentity the provisions of the Act on the Openness

of Government Activities shall apply to the right of concerned parties to have access to the

document to how public access to the document is determined and to the processing and resolving of the matter concerning access to information

The decision of the contracting authorityentity which has resolved the matter concerning ac-

cess to information can be appealed in accordance with the provisions of Section 33 of the Act

on the Openness of Government Activities The Supreme Administrative Court in whose judicial

district the contracting authorityentity is located is the competent Supreme Administrative

Court for considering the appeal submitted on the basis of a decision made by a party other

than the contracting authorityentity acting as an authority

Chapter 15

Appealing and the implications thereof

Section 87

Parties entitled to appeal

A concerned party may appeal the matter to the Market Court by issuing a complaint A sub-

contractor does not have the position of an interested party referred to in subsection 1 of this Section in terms of the matter concerning the contract

In matters concerning control procedures of the European Union the Ministry of Economic Af-

fairs and Employment may also refer the matter to the Market Court for consideration

Section 88

Object of the appeal

An appeal may be lodged before the Market Court against an award decision of the contracting

authorityentity referred to in this Act or other decision reached by the contracting authori-

tyentity during the contracting procedure which affects the status of the candidate or the ten-derer

37

An appeal may not be lodged before the Market Court against an award decision or other deci-

sion of the contracting authorityentity which concerns only the preparation of the contracting

procedure An appeal may not be lodged against a decision or other measure taken by the

supplier selected as a contracting party concerning a subcontracting agreement or an award

decision or determination made by the contracting authorityentity during the implementation of the contract

A contract based on a framework agreement referred to in Section 27 above and a contract

referred to in Section 68(2) may not be appealed unless a processing authorisation is issued by the Market Court The authorisation shall be issued if

1) the processing of the case is important in terms of applying the Act in other similar matters

or

2) there is a cogent reason for it related to the procedures of the contracting authorityentity

Section 89

Time period for appeal

Unless otherwise prescribed in this Section an appeal must be lodged in writing within 14 days

from the date when the candidate or tenderer received the notice concerning the contract with the instructions for appeal

If the contracting authorityentity has concluded a public contract after the contract decision

was issued on the basis of Section 80 point 1 without complying with the standstill period

the appeal shall be lodged within 30 days from the date when the tenderer has received notice

of the decision with the instructions for appeal

An appeal before the Market Court shall be lodged within six months of the date of the contract

decision provided that the candidate or tenderer has received notice of the contract decision

and the contract decision or appeal instructions were materially deficient or the appeal instruc-tions have been missing altogether

If the contracting authorityentity has with regard to a contract above the EU threshold re-

ferred to in Section 12 above delivered a notice regarding a direct award of contract for publi-

cation in the Official journal of the European Union the complaint must be lodged within 14 days from the publication of the notice

If the notice referred to in subsection 4 has not been published the appeal concerning a direct award of contract shall be lodged

1) within 30 days of the date of publication of a contract-award notice has been published in

the Official Journal of the European Union or

2) within six months from the conclusion of the contract at the latest

Section 90

Notification of appeal to the contracting authorityentity and the list of procurement

cases

The appellant in a contract-related matter must notify the contracting authorityentity in writ-ing of referring the case to the Market Court for consideration

The notification must be delivered to the contracting authorityentity at the latest when the

complaint concerning the contract is delivered to the Market Court The notification shall be delivered to the address provided by the contracting authorityentity

38

The Market Court shall maintain and publish a list which is as comprehensive and up-to-date

as possible of contract-related matters pending at the Market Court

Section 91

The contracting authorityentity as the opponent and compensation of legal costs

In the proceedings regarding contract-related matters the contracting authorityentity shall be considered the opponent of the party or agency lodging the appeal

The provisions of Section 74 subsections 1 and 2 of the Administrative Judicial Procedure Act shall apply to the compensation of legal costs regarding contract-related matters

The provisions of Section 74 subsections 1 and 2 of the administrative Judicial Procedure Act

concerning public authorities or other public parties shall apply to the decision concerning the

liability to provide compensation for the legal costs of the opponent If one contracting authori-

tyentity has been responsible for the contracting procedure on behalf of the other contracting

authorities the obligation regarding compensation of legal costs may be placed on the con-

tracting authorityentity which acted on behalf of the other contracting authorities

Section 92

The effect of the appeal on concluding the contract

In case of a contract where the standstill period or the time limit referred to in section 81 must

be observed the contracting authorityentity may not conclude the contract if the matter has

been brought up for consideration by the Market Court

If the Market Court decides a case concerning enforcement or decides on the principal claim

before the standstill period or the time limit referred to in Section 81 has expired the contract-

ing authorityentity shall observe the standstill period or the time limit referred to in Section

81 until the end of the period notwithstanding the ruling of the Market Court

Section 93

Interim decisions of the Market Court

While the appeal is under consideration the Market Court may prohibit suspend or allow the

implementation of the decision concerning the contract award or order the contracting proce-

dure to be suspended otherwise as an interim measure for the duration of the proceedings in the Market Court

When deciding on the measure referred to in subsection 1 the Market Court shall take into

consideration that the harm caused by the measure to the opponent the rights of third par-

ties the security of the state or the public interest may not outweigh its benefits

However the decision prescribed in subsection 1 of this Section cannot be carried out in the case of a contract referred to in Section 68(2) of this Act

A legally trained member of the Market Court may alone issue a ruling as an interim measure

Section 94

Interim commitment of the contracting authorityentity

While the appeal is under consideration the contracting authorityentity may provide a written

undertaking to the Market Court stating that it will not enforce the decision concerning the contract for as long as the matter is pending in the Market Court

39

If the contracting authorityentity provides the Market Court with the undertaking referred to

in subsection 1 the Market Court will not issue without a specific reason a decision on the

obligation to interim prohibition on implementing the decision to award the contract

Section 95

Temporary organisation of a contract

If an appeal has been lodged against a contract before the Market Court the contracting au-

thorityentity may temporarily organise the contract by ordering it from a supplier who partici-

pated in the contracting procedure or from a previous supplier if the nature of the contract is

such that executing the contract cannot be postponed for the duration of the Market Court pro-ceedings

Temporary contract arrangements must not hinder the execution of the following items by means of a decision of the Market Court

1) the decision of the contracting authorityentity to cancel the contract in full or in part

2) prohibit the contracting authorityentity from applying any erroneous item included in the contract document or otherwise complying with an incorrect procedure or

3) require the contracting authorityentity to rectify its incorrect procedure

Section 96

Sanctions imposed by the Market Court

If during the contract procedure actions have been taken which are against this Act or the provisions based thereon or against European Union legislation the Market Court may

1) cancel the decision of the contracting authorityentity in full or in part

2) prohibit the contracting authorityentity from applying any erroneous item included in the contract document or otherwise complying with an incorrect procedure

3) require the contracting authorityentity to correct its erroneous procedure

4) order the contracting authorityentity to pay a compensatory fee to the party which would

have had a genuine chance to win the bidding competition had the procedure been correct

5) impose an ineffectiveness sanction on the contracting authorityentity

6) order the contracting authorityentity to pay an infringement fine to the state

7) reduce the contract term to end after a period of time specified by the Market Court has

passed

The provisions of Sections 97ndash100 shall apply to determining the sanctions mentioned in sub-

section 1 points 4ndash7 above When determining these sanctions the Market Court may consid-

er the contract to have been concluded on the basis of specific circumstances provided that

the contracting authorityentity has especially commenced the implementation of the contract

The ineffectiveness sanctions infringement fine and reduction of contract terms may only be

issued in contracts exceeding the EU thresholds referred to in Section 12 However an ineffec-tiveness sanction cannot be imposed in a service contract in accordance with Annex B

Only a compensatory fee can be imposed in a contract referred to in Section 68(2) of this Act

40

Section 97

Compensation

Provision for compensation may be made if the harm caused to the contracting authori-

tyentity rights of third parties state security and the public interest by the measure defined

in Section 96(1)(1ndash3) is considered to outweigh the benefits or if the petition has been initiat-

ed following the conclusion of the contract With respect to setting the amount of the compen-

satory fee account shall be taken of the nature of the infringement or omission by the con-

tracting authorityentity the value of the contract in question and the costs and damages in-

curred by the petitioner The Market Court may however decide not to prove for compensa-

tion if the contracting authorityentity has refrained from implementing the contract during the proceedings in the Market Court

Without a specific reason the amount of compensation shall not exceed 10 percent of the val-

ue of the contract

Section 98

Ineffectiveness

The Market Court may declare a contract ineffective if

1) the contracting authorityentity has made a direct award of contract without the basis re-ferred to in this Act and the procedures referred to in Section 81

2) the contracting authorityentity has concluded the contract although there is an obligation in the contract to observe a standstill period

3) the contracting authorityentity has concluded the contract contrary to Section 92 although

the procurement case has been submitted to the Market Court for a decision

In addition a requirement in the situation referred to in subsection 1 points 2 and 3 above is

that the contracting authorityentity has made another infringement contrary to this Act which has affected the chances of the appellant to win the contract

If the contracting authorityentity has concluded the contract in a competition based on the

framework agreement on the basis of Section 80 without observing the standstill period and if

a breach has been committed in the competition in respect of Section 27(2 or 3) such that this

has affected the chances of the appellant to win the contract the Market Court may declare the contract ineffective

The Market Court shall decide to which contractual obligations ineffectiveness shall apply Inef-

fectiveness shall apply only to unfulfilled contractual obligations

Section 99

Non-imposition of ineffectiveness

In the situations referred to in Section 98 above the Market Court may decide not to impose

ineffectiveness for compelling reasons related to the public interest or state security Economic

interests which are directly related to the contract may be deemed compelling only if ineffec-tiveness of the contract would exceptionally have inequitable consequences

The Market Court may not impose ineffectiveness if it would result in serious endangerment of

the implementation of a defence and security project essentially important with respect to

state security

Section 100

41

Infringement fines and reduction of the contract term

The Market Court may order a contracting authorityentity to pay the state an infringement

fine if

1) the Market Court has declared the contract ineffective

2) the contracting authorityentity has concluded the contract although there is an obligation in the contract to observe a standstill period

3) the contracting authorityentity has concluded the contract contrary to Section 92 although the procurement case has been submitted to the Market Court for a decision or

4) the Market Court has decided not to declare the contract ineffective for compelling reasons related to the public interest or state security in accordance with Section 99

In the situation referred to in subsection 1 point 4 above the Market Court may in addition to

or instead of imposing a sanction reduce the contract term so that it ends after a period of time specified by the Court

The Market Court may order a contracting authorityentity to pay the state an infringement

fine or reduce the contract term so that it ends after a period of time specified by the Court

this applies to service contracts referred to in Annex B of this Act the value of which exceeds

the EU threshold as defined in Section 12 if the contracting authorityentity

1) has made a direct award of contract without the basis referred to in this Act and the proce-dures referred to in Section 81 not having been complied with in the direct award

2) has concluded the contract although there is an obligation in the contract to observe the standstill period

3) has concluded the contract contrary to Section 92 although the procurement case has been submitted to the Market Court for a decision or

4) has concluded the contract in a competition based on a framework agreement on the basis

of Section 80 without observing the standstill period and if a breach has been committed in the

competition in respect of Section 27(2 or 3) such that this has affected the chances of the ap-pellant to win the contract

In addition a requirement in the situation referred to in subsection 3 points 2 and 3 above is

that the contracting authorityentity has made another infringement contrary to this Act which

has affected the chances of the appellant to win the contract

With respect to issuing a sanction the Market Court shall take into account the nature of the

mistake or omission by the contracting authorityentity and the value of the contract in ques-

tion The sanction shall not exceed 10 percent of the value of the contract

Section 101

Allocation of sanctions and cumulative effect

If one contracting authorityentity has been responsible for the contracting procedure on be-

half of the other contracting authorities the obligation to compensate for legal costs can be

placed on the contracting authorityentity that acted on behalf of the other contracting authori-

ties

With respect to the sanctions referred to in this Act the Market Court shall take into considera-

tion that the cumulative effect may not become unreasonable for the contracting authori-

tyentity or its contracting party

42

Section 102

Conditional fine

The Market Court may impose a conditional fine in order to underline the importance of com-

plying with the prohibitions or obligations referred to in this Act The provisions of the Act on

Conditional Fines (11131990) shall apply to the imposing of and sentencing to the payment of

conditional fines

If one contracting authorityentity has been responsible for the contracting procedure on be-

half of the other contracting authorities the obligation to compensate for costs can be placed

on the contracting authorityentity that acted on behalf of the other contracting authorities

Section 103

Notification of the Market Courts ruling

The ruling of the Market Court along with the instructions for appeal shall be verifiably notified under the provisions of the Administrative Judicial Procedure Act

With the consent of the appellant and the contracting authorityentity the Market Courts deci-

sion together with the instructions for appeal may be publicised using the electronic contact

information the aforementioned parties have provided to the Market Court

When electronic contact information is used the appellant and the contracting authorityentity

shall be deemed to have been notified of the decision and instructions for appeal on the date

on which the message concerning the matter is available in the recipientsrsquo reception equipment

so that the message can be handled The provisions of Section 77(1) shall apply to electronic

notification

Section 104

Prohibition to appeal

A case that is within the jurisdiction of the Market Court cannot be appealed against under the

provisions of the Local Government Act or the Administrative Judicial Procedure Act

A decision or ruling concerning a contract which has been excluded from the scope of applica-

tion of this Act on the basis of Section 6(2) and Sections 78 or 13 may not be appealed under

the Administrative Judicial Procedure Act or the Local Government Act The subcontractor may

not under the Administrative Judicial Procedure Act or the Local Government Act appeal the

decision or action taken by the contracting authorityentity concerning the subcontract

Section 105

Appeals against the decisions of the Market Court

Appeals against a ruling of the Market Court can be lodged in the Supreme Administrative Court in accordance with the Administrative Judicial Procedure Act

As referred to in Section 93(1) an appeal cannot be lodged against the ruling by the Market

Court in the Supreme Administrative Court A ruling by the Market Court does not prevent the

case from being reconsidered by the Market Court if the grounds for the previous ruling have

changed

If the Market Court has ruled that it will not grant the processing authorisation referred to in

Section 88(3) then an appeal against this ruling can only be lodged if the Supreme Adminis-

trative Court grants a leave to appeal

43

Section 106

Application of the Administrative Judicial Procedure Act

The Administrative Judicial Procedure Act shall apply to appeals unless otherwise provided by this Act

Section 107

Implementation of rulings

A ruling of the Market Court has to be observed notwithstanding any appeal unless the Su-

preme Administrative Court orders otherwise The ruling of the Market Court issuing the sanc-

tion referred to in Section 96(1)(4ndash7) may only be implemented on the basis of a final ruling

The implementation of a ruling concerning a sanction shall be supervised by the Legal Register

Centre The Legal Register Centre must be informed of any ruling by the Market Court and

Supreme Administrative Court to issue a sanction

Section 108

Compensation for damages

Those who cause damage to a candidate tenderer or supplier shall be liable to pay compensa-

tion for the damage they have caused while acting in breach of this Act or any regulations based thereon or the European Union law

However when the claim for damages refers to costs incurred as a result of the tendering pro-

cedure the candidate or tenderer is entitled to compensation if it can provide proof of the in-

correct procedure as defined in subsection 1 and that had the procedure been correct it would have had a genuine chance to win the contract

In respect of the cases defined in subsection 1 and 2 a Court of first instance shall be the

competent court in accordance with Chapter 10 of the Code of Judicial Procedure

Chapter 16

Further provisions

Section 109

Disclosure of information

Notwithstanding the provisions concerning confidentiality provided for in the Act on the Open-

ness of Government Activities or in any other act the contracting authorityentity shall supply

statistics and other information concerning the different stages of the contract and performed

contracts to the Finnish authorities and European Union bodies to monitor contracts and ex-

change information on the scale and to the time limit required by European Union law Pursu-

ant to this Act the Ministry of Economic Affairs and Employment has the right to forward in-

formation it has received to the European Union authorities notwithstanding the regulations on confidentiality

The contracting authorityentity shall draw up a written report on each contract and framework

agreement which includes essential information on the contract contract procedure and the

candidates and tenderers who participated as well as on the decisions made in connection with

44

the contract The report and its main content shall be forwarded on request to the European

Commission A separate report is not required if corresponding information can be found in the

contract decision or other documents

To document the course of the realised contract procedure the contracting authorityentity

shall implement necessary measures in an electronic format

More specific rules are laid down in a Government decree on the obligation to provide statistics

and the responsibility of the contracting authorityentity to draw up reports on contract proce-

dures and contract decisions as referred to in subsection 1 which are to be forwarded to the

European Union bodies

Section 110

Entry into force and transitional provisions

This Act enters into force on 1 January 2012

If a contract procedure is started before the entry into force of this Act the provisions that

were in force at the time when this Act entered into force shall be applied The contract proce-

dure shall be deemed to have commenced when the contract notice was published A contract

which does not require the publication of the contract notice shall be deemed to have com-

menced when the invitation to tender or a meeting is sent or negotiations with suppliers begin

Measures necessary for the implementation of this Act may be undertaken before the Actrsquos

entry into force

45

ANNEX A

Primary services

Group No

Matter CPV Reference No

1 Maintenance and repair services 50000000-5 50100000-6-50884000-4 (except 50310000-1-50324200-4 and 50116510-9 50190000-3 50229000-6 50243000-0) and 51000000-9-51900000-1

2 Services related to international military assistance

75211300-1

3 Defence services military defence services and civil defence services

75220000-4 75221000-1 75222000-8

4 Investigation and security services 79700000-1-79720000-7

5 Land transport services 60000000-8 60100000-9-60183000-4 (except 60160000-7 60161000-4) and 64120000-3-64121200-2

6 Air transport services for passengers and freight except transport of mail

60400000-2 60410000-5-60424120-3 (except 60411000-2 60421000-5) 60440000-4-60445000-9 and 60500000-3

7 Transport of mail by land and by air 60160000-7 60161000-4 60411000-2 60421000-5

8 Railway transport services 60200000-0-60220000-6

9 Sea transport services 60600000-4-60653000-0 and 63727000-1-63727200-3

10 Support and auxiliary transport services 63100000-0-63111000-0 63120000-6-63121100-4 63122000-0 63512000-1 and 63520000-0-6370000-6

11 Telecommunications services 64200000-8-64228200-2 72318000-7 and 72700000-7-72720000-3

12 Financial services insurance services 66500000-5-66720000-3

13 Data-processing and related services 50310000-1-50324200-4 72000000-5-72920000-5 (except 72318000-7 and 72700000-7-72720000-3) 79342410-4 9342410-4

14 Research and development services(sup1) and evaluation tests

73000000-2-73436000-7

15 Accounting auditing and bookkeeping services

79210000-9-79212500-8

16 Management consulting(sup2) and related services

73200000-4-73220000-0 79400000-8-79421200-3 and 79342000-3 79342100-4 79342300-6 79342320-2 79342321-9 79910000-6 79991000-7 98362000-8

17 Architectural services engineering services and integrated engineering services urban planning and landscape architectural services related scientific and technical consulting services technical testing and analysis services

71000000-8-71900000-7(except 71550000-8) and 79994000-8

18 Building cleaning services and building and property management services

70300000-4-70340000-0 and 90900000-6-90924000-3

19 Sewage and refuse disposal services 90400000-1 to 90743200-9 (except 90712200-3)

46

sanitation and similar services 90910000-9-90920000-2 and 50190000-3 50229000-6 50243000-0

20 Training and simulation services in the fields of defence and security

80330000-6 80600000-0 80610000-3 80620000-6 80630000-9 80640000-2 80650000-5 80660000-8

(sup1) Except the research and development services referred to in Section 13(2)(5) (sup2) Except arbitration and conciliation services ANNEX B Secondary services

Group No

Matter CPV Reference No

21 Hotel and restaurant services 55100000-1-55524000-9 and 98340000-8-98341100-6

22 Support and auxiliary transport services 63000000-9-63734000-3 (except 63711200-8 63712700-0 63712710-3) 6372700-1-63727200-3 and 98361000-1

23 Legal services 79100000-5-79140000-7

24 Employment and personnel recruitment services(sup1)

79600000-0-79635000-4 (except 79611000-0 79632000-3 79633000-0) and 98500000-8-98514000-9

25 Health and social services 79611000-085000000-9 and -85323000-9 (except 85321000-5 and 85322000-2)

26 Other services

(sup1) Except employment contracts

47

ANNEX C NACEsup1ordm

Main category F CONSTRUCTION CPV code

2-digit level

3-digit level

4-digit level

Description Comments

45 Construction This two-digit level includes the following construction of new buildings and works reconstruction and common repairs

45000000

451 Site preparation

45100000

4511 Demolition and wreck-ing of buildings earth moving

This four-digit level includes the following - demolition of buildings and other structures - clearing of building sites and earth moving site excavation landfill and levelling trench dig-ging quarrying blasting etc - site preparation for mining

- overburden removal and other development and prepa-ration of mines and mining sites

This four-digit level also includes - building site underdrainage - drainage of agricultural or forestry land

45110000

4512 Test drilling This four-digit level includes the following - test drilling test boring and sampling for construction geophysical geological or similar purposes This four-digit level excludes the following - drilling of oil or gas wells comp 1120 - water well drilling 4525

45120000

sup1deg Council regulation (EEC) No 303790 (Official Journal of the European Union 293 24 October 1990 p 1) on the statistical classification of economic activities in the European Community issued on 9 October 1990 regulation as amended by Commission Regulation (EEC) No 76193 (Official Journal of the European Union L 83 3 April 1993 p 1) If there are differences of opinion between CPV and NACE NACE nomenclature shall apply

48

- shaft sinking comp 4525 - oil and gas field exploration geophysical geological and seismic surveying comp 7420

452 Building complete constructions or parts thereof

45200000

4521 Building work This four-digit level includes the following - Construction of all types of buildings - civil engineering and hydraulic engineering works - building of bridges including those for elevated highways metro tunnels - construction of long-distance pipelines communication cables and long-distance networks for power lines - construction of long-distance pipelines telecommunication ca-bles and municipal network power lines related installation work - on-site assembly and erection of pre-fabricated constructions This four-digit level excludes the following - services related to oil and gas extraction comp 1120 - erection of complete prefabricat-ed constructions from self-manufactured parts not of con-crete comp 20 26 28 - construction work other than buildings for stadiums swimming pools gymnasiums tennis courts golf courses and other sports installations comp 4523 building installation comp 453 - building completion comp 454 - architectural and engineering services comp 7420 - project management for construction comp 7420

45210000 Except 45213316 45220000 45231000 45232000

4522 Erection and covering of roofs

This four-digit level includes the following - erection of roofs - roof covering - waterproofing

45261000

49

4523 Construction of highways streets airports and sports equipment

This four-digit level includes the following - construction of highways streets other vehicular and pedestrian ways - construction of railways - construction of airfield runways - construction work other than build-ings for stadiums swimming pools gymnasiums tennis courts golf courses and other sports installations - painting of markings on road surfaces and car parks This four-digit level excludes the following - preliminary earth moving comp 4511

45212212 and DA03 45230000 except 45231000 45232000 45234115

4524 Construction of water projects

This four-digit level includes the following building works - construction of waterways harbour and river works marinas locks etc - construction of dams and breakwaters - dredging - subsurface work

45240000

4525 Other construction work

This four-digit level includes the following - construction activities specialising in one aspect common to different kinds of structures requiring specialised skill or equipment - construction of foundations including pile driving - water well drilling and construction shaft sinking - erection of non-self-manufactured steel frame elements - steel bending - bricklaying and stone setting - erecting and dismantling of scaffolds and work platforms including rental of scaffolds and work platforms - erection of chimneys and industrial ovens This four-digit level excludes the following - rental of scaffolds without erecting and dismantling comp 7132

45250000 45262000

453 Building installation 45300000

4531 Installation of electri-cal wiring and fittings

This four-digit level includes the installation in buildings or other

45213316 45310000

50

construction projects of - electrical wiring and fittings - telecommunications systems - electrical heating systems - residential antennas - fire alarms - burglar alarm systems - lifts and escalators - lightning conductors etc

Except 45316000

4532 Insulation work This four-digit level includes the following - installation in buildings or other construction projects of thermal sound or vibration insulation This four-digit level excludes the following - waterproofing comp 4522

45320000

4533 Plumbing This four-digit level includes the installation in buildings or other construction projects of the following - plumbing and sanitary equipment and fittings - gas fittings - heating ventilation refrigeration or air-conditioning equipment and ducts - sprinkler systems This four-digit level excludes the following - installation of electrical heating systems comp 4531

45330000

4534 Other installation work

This four-digit level includes the fol-lowing - installation or other construction of illumination and signalling systems for roads railways airports and harbours - installation in buildings or other construction projects of fittings and fixtures

45234115 45316000 45340000

454 Building completion 45400000

4541 Plastering This four-digit level includes the following - application in building or other construction projects of interior and exterior plaster or stucco and other similar lathing materials

45410000

4542 Joinery installation This four-digit level includes the following - installation of non-self-manufactured doors windows door

45420000

51

and window frames fitted kitchens staircases and shop fittings made of wood or other materials - completion of interiors such as ceilings wooden wall coverings wall paneling installation of movable partitions etc This four-digit level excludes the following - laying of parquet and other wooden floor coverings comp 4543

52

4543 Floor covering and wall upholstery

This four-digit level includes the following - covering or tiling of buildings or other structures using - ceramic concrete or stone wall or floor tiles or stones - parquet or other wooden floor covering - wall-to-wall carpeting or linoleum also rubber or plastic floor covering - wall or floor covering made of mosaic marble granite or slate - wallpaper

45430000

4544 Painting and glazing This four-digit level includes the following - interior and exterior painting of buildings - exterior painting of other structures - installation of mirrors glass etc This four-digit level excludes the following - installation of windows comp 4542

45440000

4545 Other building completion

This four-digit level includes the following - construction of private swimming pools - cleaning the exterior surfaces of buildings using steam sandblasting or other similar method - other building completion work not classified elsewhere This four-digit level excludes the following - cleaning of buildings and other structures comp 7470

45212212 and DA03 45450000

455 Rental of construction or dismantling equip-ment with operators

45500000

4550 Rental of construction or dismantling equip-ment with operators

This four-digit level excludes the following - rental of construction or dismantling machines and equipment without operators comp 7132

45500000

32

from the competitive bidding any tender submitted by a tenderer who does not possess the

qualifications to carry out the contract when taking into consideration the scope and object of

the contract and other criteria

The contracting authorityentity shall award the contract to the tenderer whose tender has the

lowest price or complies with the comparison criteria set in the invitation to tender and is eco-

nomically the most advantageous

The contracting authorityentity may reject a tender which does not fulfil the essential condi-

tions set in the invitation to tender or has an abnormally low price in terms of the subject mat-

ter and scope of the contract Before it may reject a tender the contracting authorityentity

shall request in writing details of the constituent elements of a tender that is abnormally low in

price

PART IV

General provisions on decisions concerning contract awards conclusion of contracts

procurement rectification public access to the contract documents and further provi-sions

Chapter 11

Decisions concerning the award of contracts and notification thereof

Section 74

Decision concerning the award

The contracting authorityentity shall provide in writing the decisions affecting the position of

the candidates and tenderers and the results of the tendering procedure including the grounds for the outcome of the procedure

The decision or the related documentation shall state the factors that fundamentally affected

the outcome including the grounds for rejecting the candidate tenderer or tender and the

grounds on which the accepted contracts were compared As regards a decision concerning

asking for bids for a contract based on a framework arrangement stating the facts showing

that the selection and award criteria have been applied as required under Section 27 shall

suffice If the standstill period referred to in Section 79 applies to the contract the decision or

the related documents shall also state the period of time after which the contract may be awarded

The contracting authorityentity is not required to make a decision referred to in this Section

concerning a contract for the additional supplies referred to in Section 23 or Section 69(4)(12)

and additional service or contract referred to in (13) or the temporary arrangements for a con-tract referred to in Section 95

In contracts based on framework agreements the contracting authorityentity is not required to make the decision referred to in this Section if

1) the contract is awarded in accordance with the conditions laid down in the framework

agreement without asking for bids or

2) the competitive bidding is based on a framework agreement when the value of the contract

does not exceed the EU threshold

33

Section 75

Suspending the contract award procedure

The contract award procedure can be suspended only for verifiable and justifiable reason

The provisions of Section 74 concerning contract ruling shall apply to the suspension of the

contract award procedure

Section 76

Appeal instructions and instructions for request for rectification

Instructions for appeal shall accompany the decisions made by the contracting authori-

tyentity explaining how to refer a case to the Market Court for consideration contact infor-

mation of the contracting authorityentity for the notice referred to in Section 90 and instruc-

tions for seeking rectification (petition instructions) explaining how the candidate or tenderer can have the case submitted for reconsideration through procurement rectification

With regard to the issuing and amending appeal and petition instructions the provisions of

Chapter 3 of the Administrative Judicial Procedure Act (5861996) shall apply in terms of ap-

peals and the provisions of Chapter 7 of the Administrative Procedure Act (4342003) shall

apply in terms of petition instructions

Section 77

Notification of the decision concerning the contract award

The decision of the contracting authorityentity including the grounds for the decision and the

appeal and petition instructions shall be submitted in writing to the parties concerned The de-

cision including the aforementioned documents shall be submitted using the electronic con-

tact information which the candidate or tenderer has given to the contracting authorityentity

When using the electronic contact information the candidate and tenderer shall be considered

to have received notice of the decision and the accompanying documents on the date on

which the electronic message containing the aforementioned documents is available in the re-

cipients reception equipment such that the message can be handled Such a point in time shall

mean the date on which the message was sent unless a reliable explanation concerning the

malfunction of telecommunications links or another analogous reason because of which the

electronic message reached the recipient later When electronic notification is used the con-

tracting authorityentity shall include in the message a separate note concerning the date

when the message was sent

The decision including the grounds for it and the appeal and petition instructions may also be

sent via regular mail under the Administrative Procedure Act Candidates and tenderers shall

be considered to have received notification of the decision and the accompanying documents

on the seventh day from the date on which they were sent unless the candidate or tenderer

proves that the notification occurred at a later date

Notification on the decision of the contracting authorityentity shall be issued without undue

delay at the latest 15 days from the date on which the contracting authorityentity receives a written request concerning notification on the decision that was made

34

Chapter 12

Public contract

Section 78

Concluding a public contract

Having made the decision to award a public contract the contracting authorityentity shall

conclude the contract The contract is concluded upon signing a written agreement

Section 79

Standstill period

In the case of a contract above the EU threshold referred to Section 12 above the contract can

be concluded at the earliest 21 days from the date when the candidate or tenderer received or is considered to have received the decision and instructions for appeal (standstill period)

A standstill period shall not be applied in direct contract awards

The provisions of Section 92 shall apply to the effect of an appeal on concluding a contract

Section 80

Exceptions to the compliance with the standstill period

The standstill period need not be upheld if

1) the contract concerns a procurement carried out on the basis of the framework agreement in accordance with Section 27

2) the contract is awarded to the tenderer who submitted the only acceptable tender and no

other tenderers or candidates remain in the competitive bidding whose position would be af-

fected by the selection of a co-contractor

3) the contract concerns a procurement referred to in Section 68(2)

Section 81

Notification of direct awards and conclusion of public contracts

In direct awards exceeding the EU threshold the contracting authorityentity may after hav-

ing made the award decision send a notice for publication concerning the direct award of con-

tract before concluding the contract In that case the contract can be concluded at the earli-est 14 days after the publication of the notice in the Official Journal of the European Union

Chapter 13

Procurement rectification

Section 82

Rectification of a procurement

The contracting authorityentity may remove an incorrect decision or annul an award decision

made during the contracting procedure concerning the legal status of the candidates or ten-

35

derers and make a new decision (procurement rectification) if the award decision or other deci-

sion reached during the contracting procedure is based on an error that occurred in the appli-cation of the law

Amending an award decision or other decision does not require the consent of the party con-

cerned However an award decision or other decision cannot be amended through procure-

ment rectification if the contract has been concluded

Section 83

Initiation of procurement rectification

The contracting authorityentity may take up a procurement rectification on its own initiative

or in response to a demand of the party in question The contracting authorityentity shall noti-fy the concerned parties immediately of the initiation of a procurement rectification

A subcontractor does not have the status of a concerned party referred to in subsection 1 of this section in terms of the matter concerning the contract

The concerned party shall present the demand within 14 days after receipt of the notification

of the award decision or other decision made by the contracting authorityentity during the

contracting procedure The contracting authorityentity itself may amend the award decision or

other decision no later than 60 days after the date the decision concerning the procurement rectification is made

Appealing the case to the Market Court does not prevent a procurement rectification or its pro-

cessing A procurement rectification may also apply to a decision of the contracting authori-

tyentity that has become legally binding if the case has not been submitted to the Market

Court for ruling

Section 84

Effect of the processing of procurement rectification on the proceedings in the Mar-ket Court

The initiation and processing of a procurement rectification do not affect the time limit within

which the concerned party has the right pursuant to this Act to submit an appeal against the

decision to the Market Court

If the award decision or other decision that was reached during the contract award procedure

is to be amended and has been appealed against before the Market Court the Market Court

shall be notified of the processing of the case through procurement rectification and informed

of the decision reached In processing a procurement rectification the contracting authori-

tyentity may prohibit the enforcement of the award decision or other decision or order it to be

suspended The Market Court shall be notified of a prohibition or suspension of enforcement if an appeal has been lodged against the decision in the Market Court

If the contracting authorityentity amends its award decision or other decision by means of a

procurement rectification such that as a result the appellant to the Market Court no longer has

the need for judicial relief or the need for a justified decision the Market Court may decline to

process such a case without giving a ruling on the principal claim

Section 85

The application of procurement rectification to other contracts

A procurement rectification can also be applied to amend an award decision or other decision

made by the contracting authorityentity during the contracting procedure to which this Act

36

shall not apply pursuant to Section 6(2) and Sections 7 8 or 13 A decision made on account

of such a contract rectification may not be appealed against in the Market Court or under the Administrative Judicial Procedure Act or Local Government (Act 3651995)

Chapter 14

Public access to the contract documents

Section 86

Application of the provisions concerning public access to the contract documents

The Act on the Openness of Government Activities (6211999) shall apply to public access to

the documents of the contracting authorityentity and the fees charged for the documents if

the contracting authorityentity is the authority referred to in Section 4 of the aforementioned

Act or if it is obliged to comply with that Act on the basis of a provision contained elsewhere in the Act

In terms of the right of parties other than the participants in the competitive bidding conducted

by the contracting authorityentity referred to in subsection 1 to have access to the docu-

ments drawn up and received for processing of the tender and the confidentiality obligation of

those employed by the contracting authorityentity the provisions of the Act on the Openness

of Government Activities shall apply to the right of concerned parties to have access to the

document to how public access to the document is determined and to the processing and resolving of the matter concerning access to information

The decision of the contracting authorityentity which has resolved the matter concerning ac-

cess to information can be appealed in accordance with the provisions of Section 33 of the Act

on the Openness of Government Activities The Supreme Administrative Court in whose judicial

district the contracting authorityentity is located is the competent Supreme Administrative

Court for considering the appeal submitted on the basis of a decision made by a party other

than the contracting authorityentity acting as an authority

Chapter 15

Appealing and the implications thereof

Section 87

Parties entitled to appeal

A concerned party may appeal the matter to the Market Court by issuing a complaint A sub-

contractor does not have the position of an interested party referred to in subsection 1 of this Section in terms of the matter concerning the contract

In matters concerning control procedures of the European Union the Ministry of Economic Af-

fairs and Employment may also refer the matter to the Market Court for consideration

Section 88

Object of the appeal

An appeal may be lodged before the Market Court against an award decision of the contracting

authorityentity referred to in this Act or other decision reached by the contracting authori-

tyentity during the contracting procedure which affects the status of the candidate or the ten-derer

37

An appeal may not be lodged before the Market Court against an award decision or other deci-

sion of the contracting authorityentity which concerns only the preparation of the contracting

procedure An appeal may not be lodged against a decision or other measure taken by the

supplier selected as a contracting party concerning a subcontracting agreement or an award

decision or determination made by the contracting authorityentity during the implementation of the contract

A contract based on a framework agreement referred to in Section 27 above and a contract

referred to in Section 68(2) may not be appealed unless a processing authorisation is issued by the Market Court The authorisation shall be issued if

1) the processing of the case is important in terms of applying the Act in other similar matters

or

2) there is a cogent reason for it related to the procedures of the contracting authorityentity

Section 89

Time period for appeal

Unless otherwise prescribed in this Section an appeal must be lodged in writing within 14 days

from the date when the candidate or tenderer received the notice concerning the contract with the instructions for appeal

If the contracting authorityentity has concluded a public contract after the contract decision

was issued on the basis of Section 80 point 1 without complying with the standstill period

the appeal shall be lodged within 30 days from the date when the tenderer has received notice

of the decision with the instructions for appeal

An appeal before the Market Court shall be lodged within six months of the date of the contract

decision provided that the candidate or tenderer has received notice of the contract decision

and the contract decision or appeal instructions were materially deficient or the appeal instruc-tions have been missing altogether

If the contracting authorityentity has with regard to a contract above the EU threshold re-

ferred to in Section 12 above delivered a notice regarding a direct award of contract for publi-

cation in the Official journal of the European Union the complaint must be lodged within 14 days from the publication of the notice

If the notice referred to in subsection 4 has not been published the appeal concerning a direct award of contract shall be lodged

1) within 30 days of the date of publication of a contract-award notice has been published in

the Official Journal of the European Union or

2) within six months from the conclusion of the contract at the latest

Section 90

Notification of appeal to the contracting authorityentity and the list of procurement

cases

The appellant in a contract-related matter must notify the contracting authorityentity in writ-ing of referring the case to the Market Court for consideration

The notification must be delivered to the contracting authorityentity at the latest when the

complaint concerning the contract is delivered to the Market Court The notification shall be delivered to the address provided by the contracting authorityentity

38

The Market Court shall maintain and publish a list which is as comprehensive and up-to-date

as possible of contract-related matters pending at the Market Court

Section 91

The contracting authorityentity as the opponent and compensation of legal costs

In the proceedings regarding contract-related matters the contracting authorityentity shall be considered the opponent of the party or agency lodging the appeal

The provisions of Section 74 subsections 1 and 2 of the Administrative Judicial Procedure Act shall apply to the compensation of legal costs regarding contract-related matters

The provisions of Section 74 subsections 1 and 2 of the administrative Judicial Procedure Act

concerning public authorities or other public parties shall apply to the decision concerning the

liability to provide compensation for the legal costs of the opponent If one contracting authori-

tyentity has been responsible for the contracting procedure on behalf of the other contracting

authorities the obligation regarding compensation of legal costs may be placed on the con-

tracting authorityentity which acted on behalf of the other contracting authorities

Section 92

The effect of the appeal on concluding the contract

In case of a contract where the standstill period or the time limit referred to in section 81 must

be observed the contracting authorityentity may not conclude the contract if the matter has

been brought up for consideration by the Market Court

If the Market Court decides a case concerning enforcement or decides on the principal claim

before the standstill period or the time limit referred to in Section 81 has expired the contract-

ing authorityentity shall observe the standstill period or the time limit referred to in Section

81 until the end of the period notwithstanding the ruling of the Market Court

Section 93

Interim decisions of the Market Court

While the appeal is under consideration the Market Court may prohibit suspend or allow the

implementation of the decision concerning the contract award or order the contracting proce-

dure to be suspended otherwise as an interim measure for the duration of the proceedings in the Market Court

When deciding on the measure referred to in subsection 1 the Market Court shall take into

consideration that the harm caused by the measure to the opponent the rights of third par-

ties the security of the state or the public interest may not outweigh its benefits

However the decision prescribed in subsection 1 of this Section cannot be carried out in the case of a contract referred to in Section 68(2) of this Act

A legally trained member of the Market Court may alone issue a ruling as an interim measure

Section 94

Interim commitment of the contracting authorityentity

While the appeal is under consideration the contracting authorityentity may provide a written

undertaking to the Market Court stating that it will not enforce the decision concerning the contract for as long as the matter is pending in the Market Court

39

If the contracting authorityentity provides the Market Court with the undertaking referred to

in subsection 1 the Market Court will not issue without a specific reason a decision on the

obligation to interim prohibition on implementing the decision to award the contract

Section 95

Temporary organisation of a contract

If an appeal has been lodged against a contract before the Market Court the contracting au-

thorityentity may temporarily organise the contract by ordering it from a supplier who partici-

pated in the contracting procedure or from a previous supplier if the nature of the contract is

such that executing the contract cannot be postponed for the duration of the Market Court pro-ceedings

Temporary contract arrangements must not hinder the execution of the following items by means of a decision of the Market Court

1) the decision of the contracting authorityentity to cancel the contract in full or in part

2) prohibit the contracting authorityentity from applying any erroneous item included in the contract document or otherwise complying with an incorrect procedure or

3) require the contracting authorityentity to rectify its incorrect procedure

Section 96

Sanctions imposed by the Market Court

If during the contract procedure actions have been taken which are against this Act or the provisions based thereon or against European Union legislation the Market Court may

1) cancel the decision of the contracting authorityentity in full or in part

2) prohibit the contracting authorityentity from applying any erroneous item included in the contract document or otherwise complying with an incorrect procedure

3) require the contracting authorityentity to correct its erroneous procedure

4) order the contracting authorityentity to pay a compensatory fee to the party which would

have had a genuine chance to win the bidding competition had the procedure been correct

5) impose an ineffectiveness sanction on the contracting authorityentity

6) order the contracting authorityentity to pay an infringement fine to the state

7) reduce the contract term to end after a period of time specified by the Market Court has

passed

The provisions of Sections 97ndash100 shall apply to determining the sanctions mentioned in sub-

section 1 points 4ndash7 above When determining these sanctions the Market Court may consid-

er the contract to have been concluded on the basis of specific circumstances provided that

the contracting authorityentity has especially commenced the implementation of the contract

The ineffectiveness sanctions infringement fine and reduction of contract terms may only be

issued in contracts exceeding the EU thresholds referred to in Section 12 However an ineffec-tiveness sanction cannot be imposed in a service contract in accordance with Annex B

Only a compensatory fee can be imposed in a contract referred to in Section 68(2) of this Act

40

Section 97

Compensation

Provision for compensation may be made if the harm caused to the contracting authori-

tyentity rights of third parties state security and the public interest by the measure defined

in Section 96(1)(1ndash3) is considered to outweigh the benefits or if the petition has been initiat-

ed following the conclusion of the contract With respect to setting the amount of the compen-

satory fee account shall be taken of the nature of the infringement or omission by the con-

tracting authorityentity the value of the contract in question and the costs and damages in-

curred by the petitioner The Market Court may however decide not to prove for compensa-

tion if the contracting authorityentity has refrained from implementing the contract during the proceedings in the Market Court

Without a specific reason the amount of compensation shall not exceed 10 percent of the val-

ue of the contract

Section 98

Ineffectiveness

The Market Court may declare a contract ineffective if

1) the contracting authorityentity has made a direct award of contract without the basis re-ferred to in this Act and the procedures referred to in Section 81

2) the contracting authorityentity has concluded the contract although there is an obligation in the contract to observe a standstill period

3) the contracting authorityentity has concluded the contract contrary to Section 92 although

the procurement case has been submitted to the Market Court for a decision

In addition a requirement in the situation referred to in subsection 1 points 2 and 3 above is

that the contracting authorityentity has made another infringement contrary to this Act which has affected the chances of the appellant to win the contract

If the contracting authorityentity has concluded the contract in a competition based on the

framework agreement on the basis of Section 80 without observing the standstill period and if

a breach has been committed in the competition in respect of Section 27(2 or 3) such that this

has affected the chances of the appellant to win the contract the Market Court may declare the contract ineffective

The Market Court shall decide to which contractual obligations ineffectiveness shall apply Inef-

fectiveness shall apply only to unfulfilled contractual obligations

Section 99

Non-imposition of ineffectiveness

In the situations referred to in Section 98 above the Market Court may decide not to impose

ineffectiveness for compelling reasons related to the public interest or state security Economic

interests which are directly related to the contract may be deemed compelling only if ineffec-tiveness of the contract would exceptionally have inequitable consequences

The Market Court may not impose ineffectiveness if it would result in serious endangerment of

the implementation of a defence and security project essentially important with respect to

state security

Section 100

41

Infringement fines and reduction of the contract term

The Market Court may order a contracting authorityentity to pay the state an infringement

fine if

1) the Market Court has declared the contract ineffective

2) the contracting authorityentity has concluded the contract although there is an obligation in the contract to observe a standstill period

3) the contracting authorityentity has concluded the contract contrary to Section 92 although the procurement case has been submitted to the Market Court for a decision or

4) the Market Court has decided not to declare the contract ineffective for compelling reasons related to the public interest or state security in accordance with Section 99

In the situation referred to in subsection 1 point 4 above the Market Court may in addition to

or instead of imposing a sanction reduce the contract term so that it ends after a period of time specified by the Court

The Market Court may order a contracting authorityentity to pay the state an infringement

fine or reduce the contract term so that it ends after a period of time specified by the Court

this applies to service contracts referred to in Annex B of this Act the value of which exceeds

the EU threshold as defined in Section 12 if the contracting authorityentity

1) has made a direct award of contract without the basis referred to in this Act and the proce-dures referred to in Section 81 not having been complied with in the direct award

2) has concluded the contract although there is an obligation in the contract to observe the standstill period

3) has concluded the contract contrary to Section 92 although the procurement case has been submitted to the Market Court for a decision or

4) has concluded the contract in a competition based on a framework agreement on the basis

of Section 80 without observing the standstill period and if a breach has been committed in the

competition in respect of Section 27(2 or 3) such that this has affected the chances of the ap-pellant to win the contract

In addition a requirement in the situation referred to in subsection 3 points 2 and 3 above is

that the contracting authorityentity has made another infringement contrary to this Act which

has affected the chances of the appellant to win the contract

With respect to issuing a sanction the Market Court shall take into account the nature of the

mistake or omission by the contracting authorityentity and the value of the contract in ques-

tion The sanction shall not exceed 10 percent of the value of the contract

Section 101

Allocation of sanctions and cumulative effect

If one contracting authorityentity has been responsible for the contracting procedure on be-

half of the other contracting authorities the obligation to compensate for legal costs can be

placed on the contracting authorityentity that acted on behalf of the other contracting authori-

ties

With respect to the sanctions referred to in this Act the Market Court shall take into considera-

tion that the cumulative effect may not become unreasonable for the contracting authori-

tyentity or its contracting party

42

Section 102

Conditional fine

The Market Court may impose a conditional fine in order to underline the importance of com-

plying with the prohibitions or obligations referred to in this Act The provisions of the Act on

Conditional Fines (11131990) shall apply to the imposing of and sentencing to the payment of

conditional fines

If one contracting authorityentity has been responsible for the contracting procedure on be-

half of the other contracting authorities the obligation to compensate for costs can be placed

on the contracting authorityentity that acted on behalf of the other contracting authorities

Section 103

Notification of the Market Courts ruling

The ruling of the Market Court along with the instructions for appeal shall be verifiably notified under the provisions of the Administrative Judicial Procedure Act

With the consent of the appellant and the contracting authorityentity the Market Courts deci-

sion together with the instructions for appeal may be publicised using the electronic contact

information the aforementioned parties have provided to the Market Court

When electronic contact information is used the appellant and the contracting authorityentity

shall be deemed to have been notified of the decision and instructions for appeal on the date

on which the message concerning the matter is available in the recipientsrsquo reception equipment

so that the message can be handled The provisions of Section 77(1) shall apply to electronic

notification

Section 104

Prohibition to appeal

A case that is within the jurisdiction of the Market Court cannot be appealed against under the

provisions of the Local Government Act or the Administrative Judicial Procedure Act

A decision or ruling concerning a contract which has been excluded from the scope of applica-

tion of this Act on the basis of Section 6(2) and Sections 78 or 13 may not be appealed under

the Administrative Judicial Procedure Act or the Local Government Act The subcontractor may

not under the Administrative Judicial Procedure Act or the Local Government Act appeal the

decision or action taken by the contracting authorityentity concerning the subcontract

Section 105

Appeals against the decisions of the Market Court

Appeals against a ruling of the Market Court can be lodged in the Supreme Administrative Court in accordance with the Administrative Judicial Procedure Act

As referred to in Section 93(1) an appeal cannot be lodged against the ruling by the Market

Court in the Supreme Administrative Court A ruling by the Market Court does not prevent the

case from being reconsidered by the Market Court if the grounds for the previous ruling have

changed

If the Market Court has ruled that it will not grant the processing authorisation referred to in

Section 88(3) then an appeal against this ruling can only be lodged if the Supreme Adminis-

trative Court grants a leave to appeal

43

Section 106

Application of the Administrative Judicial Procedure Act

The Administrative Judicial Procedure Act shall apply to appeals unless otherwise provided by this Act

Section 107

Implementation of rulings

A ruling of the Market Court has to be observed notwithstanding any appeal unless the Su-

preme Administrative Court orders otherwise The ruling of the Market Court issuing the sanc-

tion referred to in Section 96(1)(4ndash7) may only be implemented on the basis of a final ruling

The implementation of a ruling concerning a sanction shall be supervised by the Legal Register

Centre The Legal Register Centre must be informed of any ruling by the Market Court and

Supreme Administrative Court to issue a sanction

Section 108

Compensation for damages

Those who cause damage to a candidate tenderer or supplier shall be liable to pay compensa-

tion for the damage they have caused while acting in breach of this Act or any regulations based thereon or the European Union law

However when the claim for damages refers to costs incurred as a result of the tendering pro-

cedure the candidate or tenderer is entitled to compensation if it can provide proof of the in-

correct procedure as defined in subsection 1 and that had the procedure been correct it would have had a genuine chance to win the contract

In respect of the cases defined in subsection 1 and 2 a Court of first instance shall be the

competent court in accordance with Chapter 10 of the Code of Judicial Procedure

Chapter 16

Further provisions

Section 109

Disclosure of information

Notwithstanding the provisions concerning confidentiality provided for in the Act on the Open-

ness of Government Activities or in any other act the contracting authorityentity shall supply

statistics and other information concerning the different stages of the contract and performed

contracts to the Finnish authorities and European Union bodies to monitor contracts and ex-

change information on the scale and to the time limit required by European Union law Pursu-

ant to this Act the Ministry of Economic Affairs and Employment has the right to forward in-

formation it has received to the European Union authorities notwithstanding the regulations on confidentiality

The contracting authorityentity shall draw up a written report on each contract and framework

agreement which includes essential information on the contract contract procedure and the

candidates and tenderers who participated as well as on the decisions made in connection with

44

the contract The report and its main content shall be forwarded on request to the European

Commission A separate report is not required if corresponding information can be found in the

contract decision or other documents

To document the course of the realised contract procedure the contracting authorityentity

shall implement necessary measures in an electronic format

More specific rules are laid down in a Government decree on the obligation to provide statistics

and the responsibility of the contracting authorityentity to draw up reports on contract proce-

dures and contract decisions as referred to in subsection 1 which are to be forwarded to the

European Union bodies

Section 110

Entry into force and transitional provisions

This Act enters into force on 1 January 2012

If a contract procedure is started before the entry into force of this Act the provisions that

were in force at the time when this Act entered into force shall be applied The contract proce-

dure shall be deemed to have commenced when the contract notice was published A contract

which does not require the publication of the contract notice shall be deemed to have com-

menced when the invitation to tender or a meeting is sent or negotiations with suppliers begin

Measures necessary for the implementation of this Act may be undertaken before the Actrsquos

entry into force

45

ANNEX A

Primary services

Group No

Matter CPV Reference No

1 Maintenance and repair services 50000000-5 50100000-6-50884000-4 (except 50310000-1-50324200-4 and 50116510-9 50190000-3 50229000-6 50243000-0) and 51000000-9-51900000-1

2 Services related to international military assistance

75211300-1

3 Defence services military defence services and civil defence services

75220000-4 75221000-1 75222000-8

4 Investigation and security services 79700000-1-79720000-7

5 Land transport services 60000000-8 60100000-9-60183000-4 (except 60160000-7 60161000-4) and 64120000-3-64121200-2

6 Air transport services for passengers and freight except transport of mail

60400000-2 60410000-5-60424120-3 (except 60411000-2 60421000-5) 60440000-4-60445000-9 and 60500000-3

7 Transport of mail by land and by air 60160000-7 60161000-4 60411000-2 60421000-5

8 Railway transport services 60200000-0-60220000-6

9 Sea transport services 60600000-4-60653000-0 and 63727000-1-63727200-3

10 Support and auxiliary transport services 63100000-0-63111000-0 63120000-6-63121100-4 63122000-0 63512000-1 and 63520000-0-6370000-6

11 Telecommunications services 64200000-8-64228200-2 72318000-7 and 72700000-7-72720000-3

12 Financial services insurance services 66500000-5-66720000-3

13 Data-processing and related services 50310000-1-50324200-4 72000000-5-72920000-5 (except 72318000-7 and 72700000-7-72720000-3) 79342410-4 9342410-4

14 Research and development services(sup1) and evaluation tests

73000000-2-73436000-7

15 Accounting auditing and bookkeeping services

79210000-9-79212500-8

16 Management consulting(sup2) and related services

73200000-4-73220000-0 79400000-8-79421200-3 and 79342000-3 79342100-4 79342300-6 79342320-2 79342321-9 79910000-6 79991000-7 98362000-8

17 Architectural services engineering services and integrated engineering services urban planning and landscape architectural services related scientific and technical consulting services technical testing and analysis services

71000000-8-71900000-7(except 71550000-8) and 79994000-8

18 Building cleaning services and building and property management services

70300000-4-70340000-0 and 90900000-6-90924000-3

19 Sewage and refuse disposal services 90400000-1 to 90743200-9 (except 90712200-3)

46

sanitation and similar services 90910000-9-90920000-2 and 50190000-3 50229000-6 50243000-0

20 Training and simulation services in the fields of defence and security

80330000-6 80600000-0 80610000-3 80620000-6 80630000-9 80640000-2 80650000-5 80660000-8

(sup1) Except the research and development services referred to in Section 13(2)(5) (sup2) Except arbitration and conciliation services ANNEX B Secondary services

Group No

Matter CPV Reference No

21 Hotel and restaurant services 55100000-1-55524000-9 and 98340000-8-98341100-6

22 Support and auxiliary transport services 63000000-9-63734000-3 (except 63711200-8 63712700-0 63712710-3) 6372700-1-63727200-3 and 98361000-1

23 Legal services 79100000-5-79140000-7

24 Employment and personnel recruitment services(sup1)

79600000-0-79635000-4 (except 79611000-0 79632000-3 79633000-0) and 98500000-8-98514000-9

25 Health and social services 79611000-085000000-9 and -85323000-9 (except 85321000-5 and 85322000-2)

26 Other services

(sup1) Except employment contracts

47

ANNEX C NACEsup1ordm

Main category F CONSTRUCTION CPV code

2-digit level

3-digit level

4-digit level

Description Comments

45 Construction This two-digit level includes the following construction of new buildings and works reconstruction and common repairs

45000000

451 Site preparation

45100000

4511 Demolition and wreck-ing of buildings earth moving

This four-digit level includes the following - demolition of buildings and other structures - clearing of building sites and earth moving site excavation landfill and levelling trench dig-ging quarrying blasting etc - site preparation for mining

- overburden removal and other development and prepa-ration of mines and mining sites

This four-digit level also includes - building site underdrainage - drainage of agricultural or forestry land

45110000

4512 Test drilling This four-digit level includes the following - test drilling test boring and sampling for construction geophysical geological or similar purposes This four-digit level excludes the following - drilling of oil or gas wells comp 1120 - water well drilling 4525

45120000

sup1deg Council regulation (EEC) No 303790 (Official Journal of the European Union 293 24 October 1990 p 1) on the statistical classification of economic activities in the European Community issued on 9 October 1990 regulation as amended by Commission Regulation (EEC) No 76193 (Official Journal of the European Union L 83 3 April 1993 p 1) If there are differences of opinion between CPV and NACE NACE nomenclature shall apply

48

- shaft sinking comp 4525 - oil and gas field exploration geophysical geological and seismic surveying comp 7420

452 Building complete constructions or parts thereof

45200000

4521 Building work This four-digit level includes the following - Construction of all types of buildings - civil engineering and hydraulic engineering works - building of bridges including those for elevated highways metro tunnels - construction of long-distance pipelines communication cables and long-distance networks for power lines - construction of long-distance pipelines telecommunication ca-bles and municipal network power lines related installation work - on-site assembly and erection of pre-fabricated constructions This four-digit level excludes the following - services related to oil and gas extraction comp 1120 - erection of complete prefabricat-ed constructions from self-manufactured parts not of con-crete comp 20 26 28 - construction work other than buildings for stadiums swimming pools gymnasiums tennis courts golf courses and other sports installations comp 4523 building installation comp 453 - building completion comp 454 - architectural and engineering services comp 7420 - project management for construction comp 7420

45210000 Except 45213316 45220000 45231000 45232000

4522 Erection and covering of roofs

This four-digit level includes the following - erection of roofs - roof covering - waterproofing

45261000

49

4523 Construction of highways streets airports and sports equipment

This four-digit level includes the following - construction of highways streets other vehicular and pedestrian ways - construction of railways - construction of airfield runways - construction work other than build-ings for stadiums swimming pools gymnasiums tennis courts golf courses and other sports installations - painting of markings on road surfaces and car parks This four-digit level excludes the following - preliminary earth moving comp 4511

45212212 and DA03 45230000 except 45231000 45232000 45234115

4524 Construction of water projects

This four-digit level includes the following building works - construction of waterways harbour and river works marinas locks etc - construction of dams and breakwaters - dredging - subsurface work

45240000

4525 Other construction work

This four-digit level includes the following - construction activities specialising in one aspect common to different kinds of structures requiring specialised skill or equipment - construction of foundations including pile driving - water well drilling and construction shaft sinking - erection of non-self-manufactured steel frame elements - steel bending - bricklaying and stone setting - erecting and dismantling of scaffolds and work platforms including rental of scaffolds and work platforms - erection of chimneys and industrial ovens This four-digit level excludes the following - rental of scaffolds without erecting and dismantling comp 7132

45250000 45262000

453 Building installation 45300000

4531 Installation of electri-cal wiring and fittings

This four-digit level includes the installation in buildings or other

45213316 45310000

50

construction projects of - electrical wiring and fittings - telecommunications systems - electrical heating systems - residential antennas - fire alarms - burglar alarm systems - lifts and escalators - lightning conductors etc

Except 45316000

4532 Insulation work This four-digit level includes the following - installation in buildings or other construction projects of thermal sound or vibration insulation This four-digit level excludes the following - waterproofing comp 4522

45320000

4533 Plumbing This four-digit level includes the installation in buildings or other construction projects of the following - plumbing and sanitary equipment and fittings - gas fittings - heating ventilation refrigeration or air-conditioning equipment and ducts - sprinkler systems This four-digit level excludes the following - installation of electrical heating systems comp 4531

45330000

4534 Other installation work

This four-digit level includes the fol-lowing - installation or other construction of illumination and signalling systems for roads railways airports and harbours - installation in buildings or other construction projects of fittings and fixtures

45234115 45316000 45340000

454 Building completion 45400000

4541 Plastering This four-digit level includes the following - application in building or other construction projects of interior and exterior plaster or stucco and other similar lathing materials

45410000

4542 Joinery installation This four-digit level includes the following - installation of non-self-manufactured doors windows door

45420000

51

and window frames fitted kitchens staircases and shop fittings made of wood or other materials - completion of interiors such as ceilings wooden wall coverings wall paneling installation of movable partitions etc This four-digit level excludes the following - laying of parquet and other wooden floor coverings comp 4543

52

4543 Floor covering and wall upholstery

This four-digit level includes the following - covering or tiling of buildings or other structures using - ceramic concrete or stone wall or floor tiles or stones - parquet or other wooden floor covering - wall-to-wall carpeting or linoleum also rubber or plastic floor covering - wall or floor covering made of mosaic marble granite or slate - wallpaper

45430000

4544 Painting and glazing This four-digit level includes the following - interior and exterior painting of buildings - exterior painting of other structures - installation of mirrors glass etc This four-digit level excludes the following - installation of windows comp 4542

45440000

4545 Other building completion

This four-digit level includes the following - construction of private swimming pools - cleaning the exterior surfaces of buildings using steam sandblasting or other similar method - other building completion work not classified elsewhere This four-digit level excludes the following - cleaning of buildings and other structures comp 7470

45212212 and DA03 45450000

455 Rental of construction or dismantling equip-ment with operators

45500000

4550 Rental of construction or dismantling equip-ment with operators

This four-digit level excludes the following - rental of construction or dismantling machines and equipment without operators comp 7132

45500000

33

Section 75

Suspending the contract award procedure

The contract award procedure can be suspended only for verifiable and justifiable reason

The provisions of Section 74 concerning contract ruling shall apply to the suspension of the

contract award procedure

Section 76

Appeal instructions and instructions for request for rectification

Instructions for appeal shall accompany the decisions made by the contracting authori-

tyentity explaining how to refer a case to the Market Court for consideration contact infor-

mation of the contracting authorityentity for the notice referred to in Section 90 and instruc-

tions for seeking rectification (petition instructions) explaining how the candidate or tenderer can have the case submitted for reconsideration through procurement rectification

With regard to the issuing and amending appeal and petition instructions the provisions of

Chapter 3 of the Administrative Judicial Procedure Act (5861996) shall apply in terms of ap-

peals and the provisions of Chapter 7 of the Administrative Procedure Act (4342003) shall

apply in terms of petition instructions

Section 77

Notification of the decision concerning the contract award

The decision of the contracting authorityentity including the grounds for the decision and the

appeal and petition instructions shall be submitted in writing to the parties concerned The de-

cision including the aforementioned documents shall be submitted using the electronic con-

tact information which the candidate or tenderer has given to the contracting authorityentity

When using the electronic contact information the candidate and tenderer shall be considered

to have received notice of the decision and the accompanying documents on the date on

which the electronic message containing the aforementioned documents is available in the re-

cipients reception equipment such that the message can be handled Such a point in time shall

mean the date on which the message was sent unless a reliable explanation concerning the

malfunction of telecommunications links or another analogous reason because of which the

electronic message reached the recipient later When electronic notification is used the con-

tracting authorityentity shall include in the message a separate note concerning the date

when the message was sent

The decision including the grounds for it and the appeal and petition instructions may also be

sent via regular mail under the Administrative Procedure Act Candidates and tenderers shall

be considered to have received notification of the decision and the accompanying documents

on the seventh day from the date on which they were sent unless the candidate or tenderer

proves that the notification occurred at a later date

Notification on the decision of the contracting authorityentity shall be issued without undue

delay at the latest 15 days from the date on which the contracting authorityentity receives a written request concerning notification on the decision that was made

34

Chapter 12

Public contract

Section 78

Concluding a public contract

Having made the decision to award a public contract the contracting authorityentity shall

conclude the contract The contract is concluded upon signing a written agreement

Section 79

Standstill period

In the case of a contract above the EU threshold referred to Section 12 above the contract can

be concluded at the earliest 21 days from the date when the candidate or tenderer received or is considered to have received the decision and instructions for appeal (standstill period)

A standstill period shall not be applied in direct contract awards

The provisions of Section 92 shall apply to the effect of an appeal on concluding a contract

Section 80

Exceptions to the compliance with the standstill period

The standstill period need not be upheld if

1) the contract concerns a procurement carried out on the basis of the framework agreement in accordance with Section 27

2) the contract is awarded to the tenderer who submitted the only acceptable tender and no

other tenderers or candidates remain in the competitive bidding whose position would be af-

fected by the selection of a co-contractor

3) the contract concerns a procurement referred to in Section 68(2)

Section 81

Notification of direct awards and conclusion of public contracts

In direct awards exceeding the EU threshold the contracting authorityentity may after hav-

ing made the award decision send a notice for publication concerning the direct award of con-

tract before concluding the contract In that case the contract can be concluded at the earli-est 14 days after the publication of the notice in the Official Journal of the European Union

Chapter 13

Procurement rectification

Section 82

Rectification of a procurement

The contracting authorityentity may remove an incorrect decision or annul an award decision

made during the contracting procedure concerning the legal status of the candidates or ten-

35

derers and make a new decision (procurement rectification) if the award decision or other deci-

sion reached during the contracting procedure is based on an error that occurred in the appli-cation of the law

Amending an award decision or other decision does not require the consent of the party con-

cerned However an award decision or other decision cannot be amended through procure-

ment rectification if the contract has been concluded

Section 83

Initiation of procurement rectification

The contracting authorityentity may take up a procurement rectification on its own initiative

or in response to a demand of the party in question The contracting authorityentity shall noti-fy the concerned parties immediately of the initiation of a procurement rectification

A subcontractor does not have the status of a concerned party referred to in subsection 1 of this section in terms of the matter concerning the contract

The concerned party shall present the demand within 14 days after receipt of the notification

of the award decision or other decision made by the contracting authorityentity during the

contracting procedure The contracting authorityentity itself may amend the award decision or

other decision no later than 60 days after the date the decision concerning the procurement rectification is made

Appealing the case to the Market Court does not prevent a procurement rectification or its pro-

cessing A procurement rectification may also apply to a decision of the contracting authori-

tyentity that has become legally binding if the case has not been submitted to the Market

Court for ruling

Section 84

Effect of the processing of procurement rectification on the proceedings in the Mar-ket Court

The initiation and processing of a procurement rectification do not affect the time limit within

which the concerned party has the right pursuant to this Act to submit an appeal against the

decision to the Market Court

If the award decision or other decision that was reached during the contract award procedure

is to be amended and has been appealed against before the Market Court the Market Court

shall be notified of the processing of the case through procurement rectification and informed

of the decision reached In processing a procurement rectification the contracting authori-

tyentity may prohibit the enforcement of the award decision or other decision or order it to be

suspended The Market Court shall be notified of a prohibition or suspension of enforcement if an appeal has been lodged against the decision in the Market Court

If the contracting authorityentity amends its award decision or other decision by means of a

procurement rectification such that as a result the appellant to the Market Court no longer has

the need for judicial relief or the need for a justified decision the Market Court may decline to

process such a case without giving a ruling on the principal claim

Section 85

The application of procurement rectification to other contracts

A procurement rectification can also be applied to amend an award decision or other decision

made by the contracting authorityentity during the contracting procedure to which this Act

36

shall not apply pursuant to Section 6(2) and Sections 7 8 or 13 A decision made on account

of such a contract rectification may not be appealed against in the Market Court or under the Administrative Judicial Procedure Act or Local Government (Act 3651995)

Chapter 14

Public access to the contract documents

Section 86

Application of the provisions concerning public access to the contract documents

The Act on the Openness of Government Activities (6211999) shall apply to public access to

the documents of the contracting authorityentity and the fees charged for the documents if

the contracting authorityentity is the authority referred to in Section 4 of the aforementioned

Act or if it is obliged to comply with that Act on the basis of a provision contained elsewhere in the Act

In terms of the right of parties other than the participants in the competitive bidding conducted

by the contracting authorityentity referred to in subsection 1 to have access to the docu-

ments drawn up and received for processing of the tender and the confidentiality obligation of

those employed by the contracting authorityentity the provisions of the Act on the Openness

of Government Activities shall apply to the right of concerned parties to have access to the

document to how public access to the document is determined and to the processing and resolving of the matter concerning access to information

The decision of the contracting authorityentity which has resolved the matter concerning ac-

cess to information can be appealed in accordance with the provisions of Section 33 of the Act

on the Openness of Government Activities The Supreme Administrative Court in whose judicial

district the contracting authorityentity is located is the competent Supreme Administrative

Court for considering the appeal submitted on the basis of a decision made by a party other

than the contracting authorityentity acting as an authority

Chapter 15

Appealing and the implications thereof

Section 87

Parties entitled to appeal

A concerned party may appeal the matter to the Market Court by issuing a complaint A sub-

contractor does not have the position of an interested party referred to in subsection 1 of this Section in terms of the matter concerning the contract

In matters concerning control procedures of the European Union the Ministry of Economic Af-

fairs and Employment may also refer the matter to the Market Court for consideration

Section 88

Object of the appeal

An appeal may be lodged before the Market Court against an award decision of the contracting

authorityentity referred to in this Act or other decision reached by the contracting authori-

tyentity during the contracting procedure which affects the status of the candidate or the ten-derer

37

An appeal may not be lodged before the Market Court against an award decision or other deci-

sion of the contracting authorityentity which concerns only the preparation of the contracting

procedure An appeal may not be lodged against a decision or other measure taken by the

supplier selected as a contracting party concerning a subcontracting agreement or an award

decision or determination made by the contracting authorityentity during the implementation of the contract

A contract based on a framework agreement referred to in Section 27 above and a contract

referred to in Section 68(2) may not be appealed unless a processing authorisation is issued by the Market Court The authorisation shall be issued if

1) the processing of the case is important in terms of applying the Act in other similar matters

or

2) there is a cogent reason for it related to the procedures of the contracting authorityentity

Section 89

Time period for appeal

Unless otherwise prescribed in this Section an appeal must be lodged in writing within 14 days

from the date when the candidate or tenderer received the notice concerning the contract with the instructions for appeal

If the contracting authorityentity has concluded a public contract after the contract decision

was issued on the basis of Section 80 point 1 without complying with the standstill period

the appeal shall be lodged within 30 days from the date when the tenderer has received notice

of the decision with the instructions for appeal

An appeal before the Market Court shall be lodged within six months of the date of the contract

decision provided that the candidate or tenderer has received notice of the contract decision

and the contract decision or appeal instructions were materially deficient or the appeal instruc-tions have been missing altogether

If the contracting authorityentity has with regard to a contract above the EU threshold re-

ferred to in Section 12 above delivered a notice regarding a direct award of contract for publi-

cation in the Official journal of the European Union the complaint must be lodged within 14 days from the publication of the notice

If the notice referred to in subsection 4 has not been published the appeal concerning a direct award of contract shall be lodged

1) within 30 days of the date of publication of a contract-award notice has been published in

the Official Journal of the European Union or

2) within six months from the conclusion of the contract at the latest

Section 90

Notification of appeal to the contracting authorityentity and the list of procurement

cases

The appellant in a contract-related matter must notify the contracting authorityentity in writ-ing of referring the case to the Market Court for consideration

The notification must be delivered to the contracting authorityentity at the latest when the

complaint concerning the contract is delivered to the Market Court The notification shall be delivered to the address provided by the contracting authorityentity

38

The Market Court shall maintain and publish a list which is as comprehensive and up-to-date

as possible of contract-related matters pending at the Market Court

Section 91

The contracting authorityentity as the opponent and compensation of legal costs

In the proceedings regarding contract-related matters the contracting authorityentity shall be considered the opponent of the party or agency lodging the appeal

The provisions of Section 74 subsections 1 and 2 of the Administrative Judicial Procedure Act shall apply to the compensation of legal costs regarding contract-related matters

The provisions of Section 74 subsections 1 and 2 of the administrative Judicial Procedure Act

concerning public authorities or other public parties shall apply to the decision concerning the

liability to provide compensation for the legal costs of the opponent If one contracting authori-

tyentity has been responsible for the contracting procedure on behalf of the other contracting

authorities the obligation regarding compensation of legal costs may be placed on the con-

tracting authorityentity which acted on behalf of the other contracting authorities

Section 92

The effect of the appeal on concluding the contract

In case of a contract where the standstill period or the time limit referred to in section 81 must

be observed the contracting authorityentity may not conclude the contract if the matter has

been brought up for consideration by the Market Court

If the Market Court decides a case concerning enforcement or decides on the principal claim

before the standstill period or the time limit referred to in Section 81 has expired the contract-

ing authorityentity shall observe the standstill period or the time limit referred to in Section

81 until the end of the period notwithstanding the ruling of the Market Court

Section 93

Interim decisions of the Market Court

While the appeal is under consideration the Market Court may prohibit suspend or allow the

implementation of the decision concerning the contract award or order the contracting proce-

dure to be suspended otherwise as an interim measure for the duration of the proceedings in the Market Court

When deciding on the measure referred to in subsection 1 the Market Court shall take into

consideration that the harm caused by the measure to the opponent the rights of third par-

ties the security of the state or the public interest may not outweigh its benefits

However the decision prescribed in subsection 1 of this Section cannot be carried out in the case of a contract referred to in Section 68(2) of this Act

A legally trained member of the Market Court may alone issue a ruling as an interim measure

Section 94

Interim commitment of the contracting authorityentity

While the appeal is under consideration the contracting authorityentity may provide a written

undertaking to the Market Court stating that it will not enforce the decision concerning the contract for as long as the matter is pending in the Market Court

39

If the contracting authorityentity provides the Market Court with the undertaking referred to

in subsection 1 the Market Court will not issue without a specific reason a decision on the

obligation to interim prohibition on implementing the decision to award the contract

Section 95

Temporary organisation of a contract

If an appeal has been lodged against a contract before the Market Court the contracting au-

thorityentity may temporarily organise the contract by ordering it from a supplier who partici-

pated in the contracting procedure or from a previous supplier if the nature of the contract is

such that executing the contract cannot be postponed for the duration of the Market Court pro-ceedings

Temporary contract arrangements must not hinder the execution of the following items by means of a decision of the Market Court

1) the decision of the contracting authorityentity to cancel the contract in full or in part

2) prohibit the contracting authorityentity from applying any erroneous item included in the contract document or otherwise complying with an incorrect procedure or

3) require the contracting authorityentity to rectify its incorrect procedure

Section 96

Sanctions imposed by the Market Court

If during the contract procedure actions have been taken which are against this Act or the provisions based thereon or against European Union legislation the Market Court may

1) cancel the decision of the contracting authorityentity in full or in part

2) prohibit the contracting authorityentity from applying any erroneous item included in the contract document or otherwise complying with an incorrect procedure

3) require the contracting authorityentity to correct its erroneous procedure

4) order the contracting authorityentity to pay a compensatory fee to the party which would

have had a genuine chance to win the bidding competition had the procedure been correct

5) impose an ineffectiveness sanction on the contracting authorityentity

6) order the contracting authorityentity to pay an infringement fine to the state

7) reduce the contract term to end after a period of time specified by the Market Court has

passed

The provisions of Sections 97ndash100 shall apply to determining the sanctions mentioned in sub-

section 1 points 4ndash7 above When determining these sanctions the Market Court may consid-

er the contract to have been concluded on the basis of specific circumstances provided that

the contracting authorityentity has especially commenced the implementation of the contract

The ineffectiveness sanctions infringement fine and reduction of contract terms may only be

issued in contracts exceeding the EU thresholds referred to in Section 12 However an ineffec-tiveness sanction cannot be imposed in a service contract in accordance with Annex B

Only a compensatory fee can be imposed in a contract referred to in Section 68(2) of this Act

40

Section 97

Compensation

Provision for compensation may be made if the harm caused to the contracting authori-

tyentity rights of third parties state security and the public interest by the measure defined

in Section 96(1)(1ndash3) is considered to outweigh the benefits or if the petition has been initiat-

ed following the conclusion of the contract With respect to setting the amount of the compen-

satory fee account shall be taken of the nature of the infringement or omission by the con-

tracting authorityentity the value of the contract in question and the costs and damages in-

curred by the petitioner The Market Court may however decide not to prove for compensa-

tion if the contracting authorityentity has refrained from implementing the contract during the proceedings in the Market Court

Without a specific reason the amount of compensation shall not exceed 10 percent of the val-

ue of the contract

Section 98

Ineffectiveness

The Market Court may declare a contract ineffective if

1) the contracting authorityentity has made a direct award of contract without the basis re-ferred to in this Act and the procedures referred to in Section 81

2) the contracting authorityentity has concluded the contract although there is an obligation in the contract to observe a standstill period

3) the contracting authorityentity has concluded the contract contrary to Section 92 although

the procurement case has been submitted to the Market Court for a decision

In addition a requirement in the situation referred to in subsection 1 points 2 and 3 above is

that the contracting authorityentity has made another infringement contrary to this Act which has affected the chances of the appellant to win the contract

If the contracting authorityentity has concluded the contract in a competition based on the

framework agreement on the basis of Section 80 without observing the standstill period and if

a breach has been committed in the competition in respect of Section 27(2 or 3) such that this

has affected the chances of the appellant to win the contract the Market Court may declare the contract ineffective

The Market Court shall decide to which contractual obligations ineffectiveness shall apply Inef-

fectiveness shall apply only to unfulfilled contractual obligations

Section 99

Non-imposition of ineffectiveness

In the situations referred to in Section 98 above the Market Court may decide not to impose

ineffectiveness for compelling reasons related to the public interest or state security Economic

interests which are directly related to the contract may be deemed compelling only if ineffec-tiveness of the contract would exceptionally have inequitable consequences

The Market Court may not impose ineffectiveness if it would result in serious endangerment of

the implementation of a defence and security project essentially important with respect to

state security

Section 100

41

Infringement fines and reduction of the contract term

The Market Court may order a contracting authorityentity to pay the state an infringement

fine if

1) the Market Court has declared the contract ineffective

2) the contracting authorityentity has concluded the contract although there is an obligation in the contract to observe a standstill period

3) the contracting authorityentity has concluded the contract contrary to Section 92 although the procurement case has been submitted to the Market Court for a decision or

4) the Market Court has decided not to declare the contract ineffective for compelling reasons related to the public interest or state security in accordance with Section 99

In the situation referred to in subsection 1 point 4 above the Market Court may in addition to

or instead of imposing a sanction reduce the contract term so that it ends after a period of time specified by the Court

The Market Court may order a contracting authorityentity to pay the state an infringement

fine or reduce the contract term so that it ends after a period of time specified by the Court

this applies to service contracts referred to in Annex B of this Act the value of which exceeds

the EU threshold as defined in Section 12 if the contracting authorityentity

1) has made a direct award of contract without the basis referred to in this Act and the proce-dures referred to in Section 81 not having been complied with in the direct award

2) has concluded the contract although there is an obligation in the contract to observe the standstill period

3) has concluded the contract contrary to Section 92 although the procurement case has been submitted to the Market Court for a decision or

4) has concluded the contract in a competition based on a framework agreement on the basis

of Section 80 without observing the standstill period and if a breach has been committed in the

competition in respect of Section 27(2 or 3) such that this has affected the chances of the ap-pellant to win the contract

In addition a requirement in the situation referred to in subsection 3 points 2 and 3 above is

that the contracting authorityentity has made another infringement contrary to this Act which

has affected the chances of the appellant to win the contract

With respect to issuing a sanction the Market Court shall take into account the nature of the

mistake or omission by the contracting authorityentity and the value of the contract in ques-

tion The sanction shall not exceed 10 percent of the value of the contract

Section 101

Allocation of sanctions and cumulative effect

If one contracting authorityentity has been responsible for the contracting procedure on be-

half of the other contracting authorities the obligation to compensate for legal costs can be

placed on the contracting authorityentity that acted on behalf of the other contracting authori-

ties

With respect to the sanctions referred to in this Act the Market Court shall take into considera-

tion that the cumulative effect may not become unreasonable for the contracting authori-

tyentity or its contracting party

42

Section 102

Conditional fine

The Market Court may impose a conditional fine in order to underline the importance of com-

plying with the prohibitions or obligations referred to in this Act The provisions of the Act on

Conditional Fines (11131990) shall apply to the imposing of and sentencing to the payment of

conditional fines

If one contracting authorityentity has been responsible for the contracting procedure on be-

half of the other contracting authorities the obligation to compensate for costs can be placed

on the contracting authorityentity that acted on behalf of the other contracting authorities

Section 103

Notification of the Market Courts ruling

The ruling of the Market Court along with the instructions for appeal shall be verifiably notified under the provisions of the Administrative Judicial Procedure Act

With the consent of the appellant and the contracting authorityentity the Market Courts deci-

sion together with the instructions for appeal may be publicised using the electronic contact

information the aforementioned parties have provided to the Market Court

When electronic contact information is used the appellant and the contracting authorityentity

shall be deemed to have been notified of the decision and instructions for appeal on the date

on which the message concerning the matter is available in the recipientsrsquo reception equipment

so that the message can be handled The provisions of Section 77(1) shall apply to electronic

notification

Section 104

Prohibition to appeal

A case that is within the jurisdiction of the Market Court cannot be appealed against under the

provisions of the Local Government Act or the Administrative Judicial Procedure Act

A decision or ruling concerning a contract which has been excluded from the scope of applica-

tion of this Act on the basis of Section 6(2) and Sections 78 or 13 may not be appealed under

the Administrative Judicial Procedure Act or the Local Government Act The subcontractor may

not under the Administrative Judicial Procedure Act or the Local Government Act appeal the

decision or action taken by the contracting authorityentity concerning the subcontract

Section 105

Appeals against the decisions of the Market Court

Appeals against a ruling of the Market Court can be lodged in the Supreme Administrative Court in accordance with the Administrative Judicial Procedure Act

As referred to in Section 93(1) an appeal cannot be lodged against the ruling by the Market

Court in the Supreme Administrative Court A ruling by the Market Court does not prevent the

case from being reconsidered by the Market Court if the grounds for the previous ruling have

changed

If the Market Court has ruled that it will not grant the processing authorisation referred to in

Section 88(3) then an appeal against this ruling can only be lodged if the Supreme Adminis-

trative Court grants a leave to appeal

43

Section 106

Application of the Administrative Judicial Procedure Act

The Administrative Judicial Procedure Act shall apply to appeals unless otherwise provided by this Act

Section 107

Implementation of rulings

A ruling of the Market Court has to be observed notwithstanding any appeal unless the Su-

preme Administrative Court orders otherwise The ruling of the Market Court issuing the sanc-

tion referred to in Section 96(1)(4ndash7) may only be implemented on the basis of a final ruling

The implementation of a ruling concerning a sanction shall be supervised by the Legal Register

Centre The Legal Register Centre must be informed of any ruling by the Market Court and

Supreme Administrative Court to issue a sanction

Section 108

Compensation for damages

Those who cause damage to a candidate tenderer or supplier shall be liable to pay compensa-

tion for the damage they have caused while acting in breach of this Act or any regulations based thereon or the European Union law

However when the claim for damages refers to costs incurred as a result of the tendering pro-

cedure the candidate or tenderer is entitled to compensation if it can provide proof of the in-

correct procedure as defined in subsection 1 and that had the procedure been correct it would have had a genuine chance to win the contract

In respect of the cases defined in subsection 1 and 2 a Court of first instance shall be the

competent court in accordance with Chapter 10 of the Code of Judicial Procedure

Chapter 16

Further provisions

Section 109

Disclosure of information

Notwithstanding the provisions concerning confidentiality provided for in the Act on the Open-

ness of Government Activities or in any other act the contracting authorityentity shall supply

statistics and other information concerning the different stages of the contract and performed

contracts to the Finnish authorities and European Union bodies to monitor contracts and ex-

change information on the scale and to the time limit required by European Union law Pursu-

ant to this Act the Ministry of Economic Affairs and Employment has the right to forward in-

formation it has received to the European Union authorities notwithstanding the regulations on confidentiality

The contracting authorityentity shall draw up a written report on each contract and framework

agreement which includes essential information on the contract contract procedure and the

candidates and tenderers who participated as well as on the decisions made in connection with

44

the contract The report and its main content shall be forwarded on request to the European

Commission A separate report is not required if corresponding information can be found in the

contract decision or other documents

To document the course of the realised contract procedure the contracting authorityentity

shall implement necessary measures in an electronic format

More specific rules are laid down in a Government decree on the obligation to provide statistics

and the responsibility of the contracting authorityentity to draw up reports on contract proce-

dures and contract decisions as referred to in subsection 1 which are to be forwarded to the

European Union bodies

Section 110

Entry into force and transitional provisions

This Act enters into force on 1 January 2012

If a contract procedure is started before the entry into force of this Act the provisions that

were in force at the time when this Act entered into force shall be applied The contract proce-

dure shall be deemed to have commenced when the contract notice was published A contract

which does not require the publication of the contract notice shall be deemed to have com-

menced when the invitation to tender or a meeting is sent or negotiations with suppliers begin

Measures necessary for the implementation of this Act may be undertaken before the Actrsquos

entry into force

45

ANNEX A

Primary services

Group No

Matter CPV Reference No

1 Maintenance and repair services 50000000-5 50100000-6-50884000-4 (except 50310000-1-50324200-4 and 50116510-9 50190000-3 50229000-6 50243000-0) and 51000000-9-51900000-1

2 Services related to international military assistance

75211300-1

3 Defence services military defence services and civil defence services

75220000-4 75221000-1 75222000-8

4 Investigation and security services 79700000-1-79720000-7

5 Land transport services 60000000-8 60100000-9-60183000-4 (except 60160000-7 60161000-4) and 64120000-3-64121200-2

6 Air transport services for passengers and freight except transport of mail

60400000-2 60410000-5-60424120-3 (except 60411000-2 60421000-5) 60440000-4-60445000-9 and 60500000-3

7 Transport of mail by land and by air 60160000-7 60161000-4 60411000-2 60421000-5

8 Railway transport services 60200000-0-60220000-6

9 Sea transport services 60600000-4-60653000-0 and 63727000-1-63727200-3

10 Support and auxiliary transport services 63100000-0-63111000-0 63120000-6-63121100-4 63122000-0 63512000-1 and 63520000-0-6370000-6

11 Telecommunications services 64200000-8-64228200-2 72318000-7 and 72700000-7-72720000-3

12 Financial services insurance services 66500000-5-66720000-3

13 Data-processing and related services 50310000-1-50324200-4 72000000-5-72920000-5 (except 72318000-7 and 72700000-7-72720000-3) 79342410-4 9342410-4

14 Research and development services(sup1) and evaluation tests

73000000-2-73436000-7

15 Accounting auditing and bookkeeping services

79210000-9-79212500-8

16 Management consulting(sup2) and related services

73200000-4-73220000-0 79400000-8-79421200-3 and 79342000-3 79342100-4 79342300-6 79342320-2 79342321-9 79910000-6 79991000-7 98362000-8

17 Architectural services engineering services and integrated engineering services urban planning and landscape architectural services related scientific and technical consulting services technical testing and analysis services

71000000-8-71900000-7(except 71550000-8) and 79994000-8

18 Building cleaning services and building and property management services

70300000-4-70340000-0 and 90900000-6-90924000-3

19 Sewage and refuse disposal services 90400000-1 to 90743200-9 (except 90712200-3)

46

sanitation and similar services 90910000-9-90920000-2 and 50190000-3 50229000-6 50243000-0

20 Training and simulation services in the fields of defence and security

80330000-6 80600000-0 80610000-3 80620000-6 80630000-9 80640000-2 80650000-5 80660000-8

(sup1) Except the research and development services referred to in Section 13(2)(5) (sup2) Except arbitration and conciliation services ANNEX B Secondary services

Group No

Matter CPV Reference No

21 Hotel and restaurant services 55100000-1-55524000-9 and 98340000-8-98341100-6

22 Support and auxiliary transport services 63000000-9-63734000-3 (except 63711200-8 63712700-0 63712710-3) 6372700-1-63727200-3 and 98361000-1

23 Legal services 79100000-5-79140000-7

24 Employment and personnel recruitment services(sup1)

79600000-0-79635000-4 (except 79611000-0 79632000-3 79633000-0) and 98500000-8-98514000-9

25 Health and social services 79611000-085000000-9 and -85323000-9 (except 85321000-5 and 85322000-2)

26 Other services

(sup1) Except employment contracts

47

ANNEX C NACEsup1ordm

Main category F CONSTRUCTION CPV code

2-digit level

3-digit level

4-digit level

Description Comments

45 Construction This two-digit level includes the following construction of new buildings and works reconstruction and common repairs

45000000

451 Site preparation

45100000

4511 Demolition and wreck-ing of buildings earth moving

This four-digit level includes the following - demolition of buildings and other structures - clearing of building sites and earth moving site excavation landfill and levelling trench dig-ging quarrying blasting etc - site preparation for mining

- overburden removal and other development and prepa-ration of mines and mining sites

This four-digit level also includes - building site underdrainage - drainage of agricultural or forestry land

45110000

4512 Test drilling This four-digit level includes the following - test drilling test boring and sampling for construction geophysical geological or similar purposes This four-digit level excludes the following - drilling of oil or gas wells comp 1120 - water well drilling 4525

45120000

sup1deg Council regulation (EEC) No 303790 (Official Journal of the European Union 293 24 October 1990 p 1) on the statistical classification of economic activities in the European Community issued on 9 October 1990 regulation as amended by Commission Regulation (EEC) No 76193 (Official Journal of the European Union L 83 3 April 1993 p 1) If there are differences of opinion between CPV and NACE NACE nomenclature shall apply

48

- shaft sinking comp 4525 - oil and gas field exploration geophysical geological and seismic surveying comp 7420

452 Building complete constructions or parts thereof

45200000

4521 Building work This four-digit level includes the following - Construction of all types of buildings - civil engineering and hydraulic engineering works - building of bridges including those for elevated highways metro tunnels - construction of long-distance pipelines communication cables and long-distance networks for power lines - construction of long-distance pipelines telecommunication ca-bles and municipal network power lines related installation work - on-site assembly and erection of pre-fabricated constructions This four-digit level excludes the following - services related to oil and gas extraction comp 1120 - erection of complete prefabricat-ed constructions from self-manufactured parts not of con-crete comp 20 26 28 - construction work other than buildings for stadiums swimming pools gymnasiums tennis courts golf courses and other sports installations comp 4523 building installation comp 453 - building completion comp 454 - architectural and engineering services comp 7420 - project management for construction comp 7420

45210000 Except 45213316 45220000 45231000 45232000

4522 Erection and covering of roofs

This four-digit level includes the following - erection of roofs - roof covering - waterproofing

45261000

49

4523 Construction of highways streets airports and sports equipment

This four-digit level includes the following - construction of highways streets other vehicular and pedestrian ways - construction of railways - construction of airfield runways - construction work other than build-ings for stadiums swimming pools gymnasiums tennis courts golf courses and other sports installations - painting of markings on road surfaces and car parks This four-digit level excludes the following - preliminary earth moving comp 4511

45212212 and DA03 45230000 except 45231000 45232000 45234115

4524 Construction of water projects

This four-digit level includes the following building works - construction of waterways harbour and river works marinas locks etc - construction of dams and breakwaters - dredging - subsurface work

45240000

4525 Other construction work

This four-digit level includes the following - construction activities specialising in one aspect common to different kinds of structures requiring specialised skill or equipment - construction of foundations including pile driving - water well drilling and construction shaft sinking - erection of non-self-manufactured steel frame elements - steel bending - bricklaying and stone setting - erecting and dismantling of scaffolds and work platforms including rental of scaffolds and work platforms - erection of chimneys and industrial ovens This four-digit level excludes the following - rental of scaffolds without erecting and dismantling comp 7132

45250000 45262000

453 Building installation 45300000

4531 Installation of electri-cal wiring and fittings

This four-digit level includes the installation in buildings or other

45213316 45310000

50

construction projects of - electrical wiring and fittings - telecommunications systems - electrical heating systems - residential antennas - fire alarms - burglar alarm systems - lifts and escalators - lightning conductors etc

Except 45316000

4532 Insulation work This four-digit level includes the following - installation in buildings or other construction projects of thermal sound or vibration insulation This four-digit level excludes the following - waterproofing comp 4522

45320000

4533 Plumbing This four-digit level includes the installation in buildings or other construction projects of the following - plumbing and sanitary equipment and fittings - gas fittings - heating ventilation refrigeration or air-conditioning equipment and ducts - sprinkler systems This four-digit level excludes the following - installation of electrical heating systems comp 4531

45330000

4534 Other installation work

This four-digit level includes the fol-lowing - installation or other construction of illumination and signalling systems for roads railways airports and harbours - installation in buildings or other construction projects of fittings and fixtures

45234115 45316000 45340000

454 Building completion 45400000

4541 Plastering This four-digit level includes the following - application in building or other construction projects of interior and exterior plaster or stucco and other similar lathing materials

45410000

4542 Joinery installation This four-digit level includes the following - installation of non-self-manufactured doors windows door

45420000

51

and window frames fitted kitchens staircases and shop fittings made of wood or other materials - completion of interiors such as ceilings wooden wall coverings wall paneling installation of movable partitions etc This four-digit level excludes the following - laying of parquet and other wooden floor coverings comp 4543

52

4543 Floor covering and wall upholstery

This four-digit level includes the following - covering or tiling of buildings or other structures using - ceramic concrete or stone wall or floor tiles or stones - parquet or other wooden floor covering - wall-to-wall carpeting or linoleum also rubber or plastic floor covering - wall or floor covering made of mosaic marble granite or slate - wallpaper

45430000

4544 Painting and glazing This four-digit level includes the following - interior and exterior painting of buildings - exterior painting of other structures - installation of mirrors glass etc This four-digit level excludes the following - installation of windows comp 4542

45440000

4545 Other building completion

This four-digit level includes the following - construction of private swimming pools - cleaning the exterior surfaces of buildings using steam sandblasting or other similar method - other building completion work not classified elsewhere This four-digit level excludes the following - cleaning of buildings and other structures comp 7470

45212212 and DA03 45450000

455 Rental of construction or dismantling equip-ment with operators

45500000

4550 Rental of construction or dismantling equip-ment with operators

This four-digit level excludes the following - rental of construction or dismantling machines and equipment without operators comp 7132

45500000

34

Chapter 12

Public contract

Section 78

Concluding a public contract

Having made the decision to award a public contract the contracting authorityentity shall

conclude the contract The contract is concluded upon signing a written agreement

Section 79

Standstill period

In the case of a contract above the EU threshold referred to Section 12 above the contract can

be concluded at the earliest 21 days from the date when the candidate or tenderer received or is considered to have received the decision and instructions for appeal (standstill period)

A standstill period shall not be applied in direct contract awards

The provisions of Section 92 shall apply to the effect of an appeal on concluding a contract

Section 80

Exceptions to the compliance with the standstill period

The standstill period need not be upheld if

1) the contract concerns a procurement carried out on the basis of the framework agreement in accordance with Section 27

2) the contract is awarded to the tenderer who submitted the only acceptable tender and no

other tenderers or candidates remain in the competitive bidding whose position would be af-

fected by the selection of a co-contractor

3) the contract concerns a procurement referred to in Section 68(2)

Section 81

Notification of direct awards and conclusion of public contracts

In direct awards exceeding the EU threshold the contracting authorityentity may after hav-

ing made the award decision send a notice for publication concerning the direct award of con-

tract before concluding the contract In that case the contract can be concluded at the earli-est 14 days after the publication of the notice in the Official Journal of the European Union

Chapter 13

Procurement rectification

Section 82

Rectification of a procurement

The contracting authorityentity may remove an incorrect decision or annul an award decision

made during the contracting procedure concerning the legal status of the candidates or ten-

35

derers and make a new decision (procurement rectification) if the award decision or other deci-

sion reached during the contracting procedure is based on an error that occurred in the appli-cation of the law

Amending an award decision or other decision does not require the consent of the party con-

cerned However an award decision or other decision cannot be amended through procure-

ment rectification if the contract has been concluded

Section 83

Initiation of procurement rectification

The contracting authorityentity may take up a procurement rectification on its own initiative

or in response to a demand of the party in question The contracting authorityentity shall noti-fy the concerned parties immediately of the initiation of a procurement rectification

A subcontractor does not have the status of a concerned party referred to in subsection 1 of this section in terms of the matter concerning the contract

The concerned party shall present the demand within 14 days after receipt of the notification

of the award decision or other decision made by the contracting authorityentity during the

contracting procedure The contracting authorityentity itself may amend the award decision or

other decision no later than 60 days after the date the decision concerning the procurement rectification is made

Appealing the case to the Market Court does not prevent a procurement rectification or its pro-

cessing A procurement rectification may also apply to a decision of the contracting authori-

tyentity that has become legally binding if the case has not been submitted to the Market

Court for ruling

Section 84

Effect of the processing of procurement rectification on the proceedings in the Mar-ket Court

The initiation and processing of a procurement rectification do not affect the time limit within

which the concerned party has the right pursuant to this Act to submit an appeal against the

decision to the Market Court

If the award decision or other decision that was reached during the contract award procedure

is to be amended and has been appealed against before the Market Court the Market Court

shall be notified of the processing of the case through procurement rectification and informed

of the decision reached In processing a procurement rectification the contracting authori-

tyentity may prohibit the enforcement of the award decision or other decision or order it to be

suspended The Market Court shall be notified of a prohibition or suspension of enforcement if an appeal has been lodged against the decision in the Market Court

If the contracting authorityentity amends its award decision or other decision by means of a

procurement rectification such that as a result the appellant to the Market Court no longer has

the need for judicial relief or the need for a justified decision the Market Court may decline to

process such a case without giving a ruling on the principal claim

Section 85

The application of procurement rectification to other contracts

A procurement rectification can also be applied to amend an award decision or other decision

made by the contracting authorityentity during the contracting procedure to which this Act

36

shall not apply pursuant to Section 6(2) and Sections 7 8 or 13 A decision made on account

of such a contract rectification may not be appealed against in the Market Court or under the Administrative Judicial Procedure Act or Local Government (Act 3651995)

Chapter 14

Public access to the contract documents

Section 86

Application of the provisions concerning public access to the contract documents

The Act on the Openness of Government Activities (6211999) shall apply to public access to

the documents of the contracting authorityentity and the fees charged for the documents if

the contracting authorityentity is the authority referred to in Section 4 of the aforementioned

Act or if it is obliged to comply with that Act on the basis of a provision contained elsewhere in the Act

In terms of the right of parties other than the participants in the competitive bidding conducted

by the contracting authorityentity referred to in subsection 1 to have access to the docu-

ments drawn up and received for processing of the tender and the confidentiality obligation of

those employed by the contracting authorityentity the provisions of the Act on the Openness

of Government Activities shall apply to the right of concerned parties to have access to the

document to how public access to the document is determined and to the processing and resolving of the matter concerning access to information

The decision of the contracting authorityentity which has resolved the matter concerning ac-

cess to information can be appealed in accordance with the provisions of Section 33 of the Act

on the Openness of Government Activities The Supreme Administrative Court in whose judicial

district the contracting authorityentity is located is the competent Supreme Administrative

Court for considering the appeal submitted on the basis of a decision made by a party other

than the contracting authorityentity acting as an authority

Chapter 15

Appealing and the implications thereof

Section 87

Parties entitled to appeal

A concerned party may appeal the matter to the Market Court by issuing a complaint A sub-

contractor does not have the position of an interested party referred to in subsection 1 of this Section in terms of the matter concerning the contract

In matters concerning control procedures of the European Union the Ministry of Economic Af-

fairs and Employment may also refer the matter to the Market Court for consideration

Section 88

Object of the appeal

An appeal may be lodged before the Market Court against an award decision of the contracting

authorityentity referred to in this Act or other decision reached by the contracting authori-

tyentity during the contracting procedure which affects the status of the candidate or the ten-derer

37

An appeal may not be lodged before the Market Court against an award decision or other deci-

sion of the contracting authorityentity which concerns only the preparation of the contracting

procedure An appeal may not be lodged against a decision or other measure taken by the

supplier selected as a contracting party concerning a subcontracting agreement or an award

decision or determination made by the contracting authorityentity during the implementation of the contract

A contract based on a framework agreement referred to in Section 27 above and a contract

referred to in Section 68(2) may not be appealed unless a processing authorisation is issued by the Market Court The authorisation shall be issued if

1) the processing of the case is important in terms of applying the Act in other similar matters

or

2) there is a cogent reason for it related to the procedures of the contracting authorityentity

Section 89

Time period for appeal

Unless otherwise prescribed in this Section an appeal must be lodged in writing within 14 days

from the date when the candidate or tenderer received the notice concerning the contract with the instructions for appeal

If the contracting authorityentity has concluded a public contract after the contract decision

was issued on the basis of Section 80 point 1 without complying with the standstill period

the appeal shall be lodged within 30 days from the date when the tenderer has received notice

of the decision with the instructions for appeal

An appeal before the Market Court shall be lodged within six months of the date of the contract

decision provided that the candidate or tenderer has received notice of the contract decision

and the contract decision or appeal instructions were materially deficient or the appeal instruc-tions have been missing altogether

If the contracting authorityentity has with regard to a contract above the EU threshold re-

ferred to in Section 12 above delivered a notice regarding a direct award of contract for publi-

cation in the Official journal of the European Union the complaint must be lodged within 14 days from the publication of the notice

If the notice referred to in subsection 4 has not been published the appeal concerning a direct award of contract shall be lodged

1) within 30 days of the date of publication of a contract-award notice has been published in

the Official Journal of the European Union or

2) within six months from the conclusion of the contract at the latest

Section 90

Notification of appeal to the contracting authorityentity and the list of procurement

cases

The appellant in a contract-related matter must notify the contracting authorityentity in writ-ing of referring the case to the Market Court for consideration

The notification must be delivered to the contracting authorityentity at the latest when the

complaint concerning the contract is delivered to the Market Court The notification shall be delivered to the address provided by the contracting authorityentity

38

The Market Court shall maintain and publish a list which is as comprehensive and up-to-date

as possible of contract-related matters pending at the Market Court

Section 91

The contracting authorityentity as the opponent and compensation of legal costs

In the proceedings regarding contract-related matters the contracting authorityentity shall be considered the opponent of the party or agency lodging the appeal

The provisions of Section 74 subsections 1 and 2 of the Administrative Judicial Procedure Act shall apply to the compensation of legal costs regarding contract-related matters

The provisions of Section 74 subsections 1 and 2 of the administrative Judicial Procedure Act

concerning public authorities or other public parties shall apply to the decision concerning the

liability to provide compensation for the legal costs of the opponent If one contracting authori-

tyentity has been responsible for the contracting procedure on behalf of the other contracting

authorities the obligation regarding compensation of legal costs may be placed on the con-

tracting authorityentity which acted on behalf of the other contracting authorities

Section 92

The effect of the appeal on concluding the contract

In case of a contract where the standstill period or the time limit referred to in section 81 must

be observed the contracting authorityentity may not conclude the contract if the matter has

been brought up for consideration by the Market Court

If the Market Court decides a case concerning enforcement or decides on the principal claim

before the standstill period or the time limit referred to in Section 81 has expired the contract-

ing authorityentity shall observe the standstill period or the time limit referred to in Section

81 until the end of the period notwithstanding the ruling of the Market Court

Section 93

Interim decisions of the Market Court

While the appeal is under consideration the Market Court may prohibit suspend or allow the

implementation of the decision concerning the contract award or order the contracting proce-

dure to be suspended otherwise as an interim measure for the duration of the proceedings in the Market Court

When deciding on the measure referred to in subsection 1 the Market Court shall take into

consideration that the harm caused by the measure to the opponent the rights of third par-

ties the security of the state or the public interest may not outweigh its benefits

However the decision prescribed in subsection 1 of this Section cannot be carried out in the case of a contract referred to in Section 68(2) of this Act

A legally trained member of the Market Court may alone issue a ruling as an interim measure

Section 94

Interim commitment of the contracting authorityentity

While the appeal is under consideration the contracting authorityentity may provide a written

undertaking to the Market Court stating that it will not enforce the decision concerning the contract for as long as the matter is pending in the Market Court

39

If the contracting authorityentity provides the Market Court with the undertaking referred to

in subsection 1 the Market Court will not issue without a specific reason a decision on the

obligation to interim prohibition on implementing the decision to award the contract

Section 95

Temporary organisation of a contract

If an appeal has been lodged against a contract before the Market Court the contracting au-

thorityentity may temporarily organise the contract by ordering it from a supplier who partici-

pated in the contracting procedure or from a previous supplier if the nature of the contract is

such that executing the contract cannot be postponed for the duration of the Market Court pro-ceedings

Temporary contract arrangements must not hinder the execution of the following items by means of a decision of the Market Court

1) the decision of the contracting authorityentity to cancel the contract in full or in part

2) prohibit the contracting authorityentity from applying any erroneous item included in the contract document or otherwise complying with an incorrect procedure or

3) require the contracting authorityentity to rectify its incorrect procedure

Section 96

Sanctions imposed by the Market Court

If during the contract procedure actions have been taken which are against this Act or the provisions based thereon or against European Union legislation the Market Court may

1) cancel the decision of the contracting authorityentity in full or in part

2) prohibit the contracting authorityentity from applying any erroneous item included in the contract document or otherwise complying with an incorrect procedure

3) require the contracting authorityentity to correct its erroneous procedure

4) order the contracting authorityentity to pay a compensatory fee to the party which would

have had a genuine chance to win the bidding competition had the procedure been correct

5) impose an ineffectiveness sanction on the contracting authorityentity

6) order the contracting authorityentity to pay an infringement fine to the state

7) reduce the contract term to end after a period of time specified by the Market Court has

passed

The provisions of Sections 97ndash100 shall apply to determining the sanctions mentioned in sub-

section 1 points 4ndash7 above When determining these sanctions the Market Court may consid-

er the contract to have been concluded on the basis of specific circumstances provided that

the contracting authorityentity has especially commenced the implementation of the contract

The ineffectiveness sanctions infringement fine and reduction of contract terms may only be

issued in contracts exceeding the EU thresholds referred to in Section 12 However an ineffec-tiveness sanction cannot be imposed in a service contract in accordance with Annex B

Only a compensatory fee can be imposed in a contract referred to in Section 68(2) of this Act

40

Section 97

Compensation

Provision for compensation may be made if the harm caused to the contracting authori-

tyentity rights of third parties state security and the public interest by the measure defined

in Section 96(1)(1ndash3) is considered to outweigh the benefits or if the petition has been initiat-

ed following the conclusion of the contract With respect to setting the amount of the compen-

satory fee account shall be taken of the nature of the infringement or omission by the con-

tracting authorityentity the value of the contract in question and the costs and damages in-

curred by the petitioner The Market Court may however decide not to prove for compensa-

tion if the contracting authorityentity has refrained from implementing the contract during the proceedings in the Market Court

Without a specific reason the amount of compensation shall not exceed 10 percent of the val-

ue of the contract

Section 98

Ineffectiveness

The Market Court may declare a contract ineffective if

1) the contracting authorityentity has made a direct award of contract without the basis re-ferred to in this Act and the procedures referred to in Section 81

2) the contracting authorityentity has concluded the contract although there is an obligation in the contract to observe a standstill period

3) the contracting authorityentity has concluded the contract contrary to Section 92 although

the procurement case has been submitted to the Market Court for a decision

In addition a requirement in the situation referred to in subsection 1 points 2 and 3 above is

that the contracting authorityentity has made another infringement contrary to this Act which has affected the chances of the appellant to win the contract

If the contracting authorityentity has concluded the contract in a competition based on the

framework agreement on the basis of Section 80 without observing the standstill period and if

a breach has been committed in the competition in respect of Section 27(2 or 3) such that this

has affected the chances of the appellant to win the contract the Market Court may declare the contract ineffective

The Market Court shall decide to which contractual obligations ineffectiveness shall apply Inef-

fectiveness shall apply only to unfulfilled contractual obligations

Section 99

Non-imposition of ineffectiveness

In the situations referred to in Section 98 above the Market Court may decide not to impose

ineffectiveness for compelling reasons related to the public interest or state security Economic

interests which are directly related to the contract may be deemed compelling only if ineffec-tiveness of the contract would exceptionally have inequitable consequences

The Market Court may not impose ineffectiveness if it would result in serious endangerment of

the implementation of a defence and security project essentially important with respect to

state security

Section 100

41

Infringement fines and reduction of the contract term

The Market Court may order a contracting authorityentity to pay the state an infringement

fine if

1) the Market Court has declared the contract ineffective

2) the contracting authorityentity has concluded the contract although there is an obligation in the contract to observe a standstill period

3) the contracting authorityentity has concluded the contract contrary to Section 92 although the procurement case has been submitted to the Market Court for a decision or

4) the Market Court has decided not to declare the contract ineffective for compelling reasons related to the public interest or state security in accordance with Section 99

In the situation referred to in subsection 1 point 4 above the Market Court may in addition to

or instead of imposing a sanction reduce the contract term so that it ends after a period of time specified by the Court

The Market Court may order a contracting authorityentity to pay the state an infringement

fine or reduce the contract term so that it ends after a period of time specified by the Court

this applies to service contracts referred to in Annex B of this Act the value of which exceeds

the EU threshold as defined in Section 12 if the contracting authorityentity

1) has made a direct award of contract without the basis referred to in this Act and the proce-dures referred to in Section 81 not having been complied with in the direct award

2) has concluded the contract although there is an obligation in the contract to observe the standstill period

3) has concluded the contract contrary to Section 92 although the procurement case has been submitted to the Market Court for a decision or

4) has concluded the contract in a competition based on a framework agreement on the basis

of Section 80 without observing the standstill period and if a breach has been committed in the

competition in respect of Section 27(2 or 3) such that this has affected the chances of the ap-pellant to win the contract

In addition a requirement in the situation referred to in subsection 3 points 2 and 3 above is

that the contracting authorityentity has made another infringement contrary to this Act which

has affected the chances of the appellant to win the contract

With respect to issuing a sanction the Market Court shall take into account the nature of the

mistake or omission by the contracting authorityentity and the value of the contract in ques-

tion The sanction shall not exceed 10 percent of the value of the contract

Section 101

Allocation of sanctions and cumulative effect

If one contracting authorityentity has been responsible for the contracting procedure on be-

half of the other contracting authorities the obligation to compensate for legal costs can be

placed on the contracting authorityentity that acted on behalf of the other contracting authori-

ties

With respect to the sanctions referred to in this Act the Market Court shall take into considera-

tion that the cumulative effect may not become unreasonable for the contracting authori-

tyentity or its contracting party

42

Section 102

Conditional fine

The Market Court may impose a conditional fine in order to underline the importance of com-

plying with the prohibitions or obligations referred to in this Act The provisions of the Act on

Conditional Fines (11131990) shall apply to the imposing of and sentencing to the payment of

conditional fines

If one contracting authorityentity has been responsible for the contracting procedure on be-

half of the other contracting authorities the obligation to compensate for costs can be placed

on the contracting authorityentity that acted on behalf of the other contracting authorities

Section 103

Notification of the Market Courts ruling

The ruling of the Market Court along with the instructions for appeal shall be verifiably notified under the provisions of the Administrative Judicial Procedure Act

With the consent of the appellant and the contracting authorityentity the Market Courts deci-

sion together with the instructions for appeal may be publicised using the electronic contact

information the aforementioned parties have provided to the Market Court

When electronic contact information is used the appellant and the contracting authorityentity

shall be deemed to have been notified of the decision and instructions for appeal on the date

on which the message concerning the matter is available in the recipientsrsquo reception equipment

so that the message can be handled The provisions of Section 77(1) shall apply to electronic

notification

Section 104

Prohibition to appeal

A case that is within the jurisdiction of the Market Court cannot be appealed against under the

provisions of the Local Government Act or the Administrative Judicial Procedure Act

A decision or ruling concerning a contract which has been excluded from the scope of applica-

tion of this Act on the basis of Section 6(2) and Sections 78 or 13 may not be appealed under

the Administrative Judicial Procedure Act or the Local Government Act The subcontractor may

not under the Administrative Judicial Procedure Act or the Local Government Act appeal the

decision or action taken by the contracting authorityentity concerning the subcontract

Section 105

Appeals against the decisions of the Market Court

Appeals against a ruling of the Market Court can be lodged in the Supreme Administrative Court in accordance with the Administrative Judicial Procedure Act

As referred to in Section 93(1) an appeal cannot be lodged against the ruling by the Market

Court in the Supreme Administrative Court A ruling by the Market Court does not prevent the

case from being reconsidered by the Market Court if the grounds for the previous ruling have

changed

If the Market Court has ruled that it will not grant the processing authorisation referred to in

Section 88(3) then an appeal against this ruling can only be lodged if the Supreme Adminis-

trative Court grants a leave to appeal

43

Section 106

Application of the Administrative Judicial Procedure Act

The Administrative Judicial Procedure Act shall apply to appeals unless otherwise provided by this Act

Section 107

Implementation of rulings

A ruling of the Market Court has to be observed notwithstanding any appeal unless the Su-

preme Administrative Court orders otherwise The ruling of the Market Court issuing the sanc-

tion referred to in Section 96(1)(4ndash7) may only be implemented on the basis of a final ruling

The implementation of a ruling concerning a sanction shall be supervised by the Legal Register

Centre The Legal Register Centre must be informed of any ruling by the Market Court and

Supreme Administrative Court to issue a sanction

Section 108

Compensation for damages

Those who cause damage to a candidate tenderer or supplier shall be liable to pay compensa-

tion for the damage they have caused while acting in breach of this Act or any regulations based thereon or the European Union law

However when the claim for damages refers to costs incurred as a result of the tendering pro-

cedure the candidate or tenderer is entitled to compensation if it can provide proof of the in-

correct procedure as defined in subsection 1 and that had the procedure been correct it would have had a genuine chance to win the contract

In respect of the cases defined in subsection 1 and 2 a Court of first instance shall be the

competent court in accordance with Chapter 10 of the Code of Judicial Procedure

Chapter 16

Further provisions

Section 109

Disclosure of information

Notwithstanding the provisions concerning confidentiality provided for in the Act on the Open-

ness of Government Activities or in any other act the contracting authorityentity shall supply

statistics and other information concerning the different stages of the contract and performed

contracts to the Finnish authorities and European Union bodies to monitor contracts and ex-

change information on the scale and to the time limit required by European Union law Pursu-

ant to this Act the Ministry of Economic Affairs and Employment has the right to forward in-

formation it has received to the European Union authorities notwithstanding the regulations on confidentiality

The contracting authorityentity shall draw up a written report on each contract and framework

agreement which includes essential information on the contract contract procedure and the

candidates and tenderers who participated as well as on the decisions made in connection with

44

the contract The report and its main content shall be forwarded on request to the European

Commission A separate report is not required if corresponding information can be found in the

contract decision or other documents

To document the course of the realised contract procedure the contracting authorityentity

shall implement necessary measures in an electronic format

More specific rules are laid down in a Government decree on the obligation to provide statistics

and the responsibility of the contracting authorityentity to draw up reports on contract proce-

dures and contract decisions as referred to in subsection 1 which are to be forwarded to the

European Union bodies

Section 110

Entry into force and transitional provisions

This Act enters into force on 1 January 2012

If a contract procedure is started before the entry into force of this Act the provisions that

were in force at the time when this Act entered into force shall be applied The contract proce-

dure shall be deemed to have commenced when the contract notice was published A contract

which does not require the publication of the contract notice shall be deemed to have com-

menced when the invitation to tender or a meeting is sent or negotiations with suppliers begin

Measures necessary for the implementation of this Act may be undertaken before the Actrsquos

entry into force

45

ANNEX A

Primary services

Group No

Matter CPV Reference No

1 Maintenance and repair services 50000000-5 50100000-6-50884000-4 (except 50310000-1-50324200-4 and 50116510-9 50190000-3 50229000-6 50243000-0) and 51000000-9-51900000-1

2 Services related to international military assistance

75211300-1

3 Defence services military defence services and civil defence services

75220000-4 75221000-1 75222000-8

4 Investigation and security services 79700000-1-79720000-7

5 Land transport services 60000000-8 60100000-9-60183000-4 (except 60160000-7 60161000-4) and 64120000-3-64121200-2

6 Air transport services for passengers and freight except transport of mail

60400000-2 60410000-5-60424120-3 (except 60411000-2 60421000-5) 60440000-4-60445000-9 and 60500000-3

7 Transport of mail by land and by air 60160000-7 60161000-4 60411000-2 60421000-5

8 Railway transport services 60200000-0-60220000-6

9 Sea transport services 60600000-4-60653000-0 and 63727000-1-63727200-3

10 Support and auxiliary transport services 63100000-0-63111000-0 63120000-6-63121100-4 63122000-0 63512000-1 and 63520000-0-6370000-6

11 Telecommunications services 64200000-8-64228200-2 72318000-7 and 72700000-7-72720000-3

12 Financial services insurance services 66500000-5-66720000-3

13 Data-processing and related services 50310000-1-50324200-4 72000000-5-72920000-5 (except 72318000-7 and 72700000-7-72720000-3) 79342410-4 9342410-4

14 Research and development services(sup1) and evaluation tests

73000000-2-73436000-7

15 Accounting auditing and bookkeeping services

79210000-9-79212500-8

16 Management consulting(sup2) and related services

73200000-4-73220000-0 79400000-8-79421200-3 and 79342000-3 79342100-4 79342300-6 79342320-2 79342321-9 79910000-6 79991000-7 98362000-8

17 Architectural services engineering services and integrated engineering services urban planning and landscape architectural services related scientific and technical consulting services technical testing and analysis services

71000000-8-71900000-7(except 71550000-8) and 79994000-8

18 Building cleaning services and building and property management services

70300000-4-70340000-0 and 90900000-6-90924000-3

19 Sewage and refuse disposal services 90400000-1 to 90743200-9 (except 90712200-3)

46

sanitation and similar services 90910000-9-90920000-2 and 50190000-3 50229000-6 50243000-0

20 Training and simulation services in the fields of defence and security

80330000-6 80600000-0 80610000-3 80620000-6 80630000-9 80640000-2 80650000-5 80660000-8

(sup1) Except the research and development services referred to in Section 13(2)(5) (sup2) Except arbitration and conciliation services ANNEX B Secondary services

Group No

Matter CPV Reference No

21 Hotel and restaurant services 55100000-1-55524000-9 and 98340000-8-98341100-6

22 Support and auxiliary transport services 63000000-9-63734000-3 (except 63711200-8 63712700-0 63712710-3) 6372700-1-63727200-3 and 98361000-1

23 Legal services 79100000-5-79140000-7

24 Employment and personnel recruitment services(sup1)

79600000-0-79635000-4 (except 79611000-0 79632000-3 79633000-0) and 98500000-8-98514000-9

25 Health and social services 79611000-085000000-9 and -85323000-9 (except 85321000-5 and 85322000-2)

26 Other services

(sup1) Except employment contracts

47

ANNEX C NACEsup1ordm

Main category F CONSTRUCTION CPV code

2-digit level

3-digit level

4-digit level

Description Comments

45 Construction This two-digit level includes the following construction of new buildings and works reconstruction and common repairs

45000000

451 Site preparation

45100000

4511 Demolition and wreck-ing of buildings earth moving

This four-digit level includes the following - demolition of buildings and other structures - clearing of building sites and earth moving site excavation landfill and levelling trench dig-ging quarrying blasting etc - site preparation for mining

- overburden removal and other development and prepa-ration of mines and mining sites

This four-digit level also includes - building site underdrainage - drainage of agricultural or forestry land

45110000

4512 Test drilling This four-digit level includes the following - test drilling test boring and sampling for construction geophysical geological or similar purposes This four-digit level excludes the following - drilling of oil or gas wells comp 1120 - water well drilling 4525

45120000

sup1deg Council regulation (EEC) No 303790 (Official Journal of the European Union 293 24 October 1990 p 1) on the statistical classification of economic activities in the European Community issued on 9 October 1990 regulation as amended by Commission Regulation (EEC) No 76193 (Official Journal of the European Union L 83 3 April 1993 p 1) If there are differences of opinion between CPV and NACE NACE nomenclature shall apply

48

- shaft sinking comp 4525 - oil and gas field exploration geophysical geological and seismic surveying comp 7420

452 Building complete constructions or parts thereof

45200000

4521 Building work This four-digit level includes the following - Construction of all types of buildings - civil engineering and hydraulic engineering works - building of bridges including those for elevated highways metro tunnels - construction of long-distance pipelines communication cables and long-distance networks for power lines - construction of long-distance pipelines telecommunication ca-bles and municipal network power lines related installation work - on-site assembly and erection of pre-fabricated constructions This four-digit level excludes the following - services related to oil and gas extraction comp 1120 - erection of complete prefabricat-ed constructions from self-manufactured parts not of con-crete comp 20 26 28 - construction work other than buildings for stadiums swimming pools gymnasiums tennis courts golf courses and other sports installations comp 4523 building installation comp 453 - building completion comp 454 - architectural and engineering services comp 7420 - project management for construction comp 7420

45210000 Except 45213316 45220000 45231000 45232000

4522 Erection and covering of roofs

This four-digit level includes the following - erection of roofs - roof covering - waterproofing

45261000

49

4523 Construction of highways streets airports and sports equipment

This four-digit level includes the following - construction of highways streets other vehicular and pedestrian ways - construction of railways - construction of airfield runways - construction work other than build-ings for stadiums swimming pools gymnasiums tennis courts golf courses and other sports installations - painting of markings on road surfaces and car parks This four-digit level excludes the following - preliminary earth moving comp 4511

45212212 and DA03 45230000 except 45231000 45232000 45234115

4524 Construction of water projects

This four-digit level includes the following building works - construction of waterways harbour and river works marinas locks etc - construction of dams and breakwaters - dredging - subsurface work

45240000

4525 Other construction work

This four-digit level includes the following - construction activities specialising in one aspect common to different kinds of structures requiring specialised skill or equipment - construction of foundations including pile driving - water well drilling and construction shaft sinking - erection of non-self-manufactured steel frame elements - steel bending - bricklaying and stone setting - erecting and dismantling of scaffolds and work platforms including rental of scaffolds and work platforms - erection of chimneys and industrial ovens This four-digit level excludes the following - rental of scaffolds without erecting and dismantling comp 7132

45250000 45262000

453 Building installation 45300000

4531 Installation of electri-cal wiring and fittings

This four-digit level includes the installation in buildings or other

45213316 45310000

50

construction projects of - electrical wiring and fittings - telecommunications systems - electrical heating systems - residential antennas - fire alarms - burglar alarm systems - lifts and escalators - lightning conductors etc

Except 45316000

4532 Insulation work This four-digit level includes the following - installation in buildings or other construction projects of thermal sound or vibration insulation This four-digit level excludes the following - waterproofing comp 4522

45320000

4533 Plumbing This four-digit level includes the installation in buildings or other construction projects of the following - plumbing and sanitary equipment and fittings - gas fittings - heating ventilation refrigeration or air-conditioning equipment and ducts - sprinkler systems This four-digit level excludes the following - installation of electrical heating systems comp 4531

45330000

4534 Other installation work

This four-digit level includes the fol-lowing - installation or other construction of illumination and signalling systems for roads railways airports and harbours - installation in buildings or other construction projects of fittings and fixtures

45234115 45316000 45340000

454 Building completion 45400000

4541 Plastering This four-digit level includes the following - application in building or other construction projects of interior and exterior plaster or stucco and other similar lathing materials

45410000

4542 Joinery installation This four-digit level includes the following - installation of non-self-manufactured doors windows door

45420000

51

and window frames fitted kitchens staircases and shop fittings made of wood or other materials - completion of interiors such as ceilings wooden wall coverings wall paneling installation of movable partitions etc This four-digit level excludes the following - laying of parquet and other wooden floor coverings comp 4543

52

4543 Floor covering and wall upholstery

This four-digit level includes the following - covering or tiling of buildings or other structures using - ceramic concrete or stone wall or floor tiles or stones - parquet or other wooden floor covering - wall-to-wall carpeting or linoleum also rubber or plastic floor covering - wall or floor covering made of mosaic marble granite or slate - wallpaper

45430000

4544 Painting and glazing This four-digit level includes the following - interior and exterior painting of buildings - exterior painting of other structures - installation of mirrors glass etc This four-digit level excludes the following - installation of windows comp 4542

45440000

4545 Other building completion

This four-digit level includes the following - construction of private swimming pools - cleaning the exterior surfaces of buildings using steam sandblasting or other similar method - other building completion work not classified elsewhere This four-digit level excludes the following - cleaning of buildings and other structures comp 7470

45212212 and DA03 45450000

455 Rental of construction or dismantling equip-ment with operators

45500000

4550 Rental of construction or dismantling equip-ment with operators

This four-digit level excludes the following - rental of construction or dismantling machines and equipment without operators comp 7132

45500000

35

derers and make a new decision (procurement rectification) if the award decision or other deci-

sion reached during the contracting procedure is based on an error that occurred in the appli-cation of the law

Amending an award decision or other decision does not require the consent of the party con-

cerned However an award decision or other decision cannot be amended through procure-

ment rectification if the contract has been concluded

Section 83

Initiation of procurement rectification

The contracting authorityentity may take up a procurement rectification on its own initiative

or in response to a demand of the party in question The contracting authorityentity shall noti-fy the concerned parties immediately of the initiation of a procurement rectification

A subcontractor does not have the status of a concerned party referred to in subsection 1 of this section in terms of the matter concerning the contract

The concerned party shall present the demand within 14 days after receipt of the notification

of the award decision or other decision made by the contracting authorityentity during the

contracting procedure The contracting authorityentity itself may amend the award decision or

other decision no later than 60 days after the date the decision concerning the procurement rectification is made

Appealing the case to the Market Court does not prevent a procurement rectification or its pro-

cessing A procurement rectification may also apply to a decision of the contracting authori-

tyentity that has become legally binding if the case has not been submitted to the Market

Court for ruling

Section 84

Effect of the processing of procurement rectification on the proceedings in the Mar-ket Court

The initiation and processing of a procurement rectification do not affect the time limit within

which the concerned party has the right pursuant to this Act to submit an appeal against the

decision to the Market Court

If the award decision or other decision that was reached during the contract award procedure

is to be amended and has been appealed against before the Market Court the Market Court

shall be notified of the processing of the case through procurement rectification and informed

of the decision reached In processing a procurement rectification the contracting authori-

tyentity may prohibit the enforcement of the award decision or other decision or order it to be

suspended The Market Court shall be notified of a prohibition or suspension of enforcement if an appeal has been lodged against the decision in the Market Court

If the contracting authorityentity amends its award decision or other decision by means of a

procurement rectification such that as a result the appellant to the Market Court no longer has

the need for judicial relief or the need for a justified decision the Market Court may decline to

process such a case without giving a ruling on the principal claim

Section 85

The application of procurement rectification to other contracts

A procurement rectification can also be applied to amend an award decision or other decision

made by the contracting authorityentity during the contracting procedure to which this Act

36

shall not apply pursuant to Section 6(2) and Sections 7 8 or 13 A decision made on account

of such a contract rectification may not be appealed against in the Market Court or under the Administrative Judicial Procedure Act or Local Government (Act 3651995)

Chapter 14

Public access to the contract documents

Section 86

Application of the provisions concerning public access to the contract documents

The Act on the Openness of Government Activities (6211999) shall apply to public access to

the documents of the contracting authorityentity and the fees charged for the documents if

the contracting authorityentity is the authority referred to in Section 4 of the aforementioned

Act or if it is obliged to comply with that Act on the basis of a provision contained elsewhere in the Act

In terms of the right of parties other than the participants in the competitive bidding conducted

by the contracting authorityentity referred to in subsection 1 to have access to the docu-

ments drawn up and received for processing of the tender and the confidentiality obligation of

those employed by the contracting authorityentity the provisions of the Act on the Openness

of Government Activities shall apply to the right of concerned parties to have access to the

document to how public access to the document is determined and to the processing and resolving of the matter concerning access to information

The decision of the contracting authorityentity which has resolved the matter concerning ac-

cess to information can be appealed in accordance with the provisions of Section 33 of the Act

on the Openness of Government Activities The Supreme Administrative Court in whose judicial

district the contracting authorityentity is located is the competent Supreme Administrative

Court for considering the appeal submitted on the basis of a decision made by a party other

than the contracting authorityentity acting as an authority

Chapter 15

Appealing and the implications thereof

Section 87

Parties entitled to appeal

A concerned party may appeal the matter to the Market Court by issuing a complaint A sub-

contractor does not have the position of an interested party referred to in subsection 1 of this Section in terms of the matter concerning the contract

In matters concerning control procedures of the European Union the Ministry of Economic Af-

fairs and Employment may also refer the matter to the Market Court for consideration

Section 88

Object of the appeal

An appeal may be lodged before the Market Court against an award decision of the contracting

authorityentity referred to in this Act or other decision reached by the contracting authori-

tyentity during the contracting procedure which affects the status of the candidate or the ten-derer

37

An appeal may not be lodged before the Market Court against an award decision or other deci-

sion of the contracting authorityentity which concerns only the preparation of the contracting

procedure An appeal may not be lodged against a decision or other measure taken by the

supplier selected as a contracting party concerning a subcontracting agreement or an award

decision or determination made by the contracting authorityentity during the implementation of the contract

A contract based on a framework agreement referred to in Section 27 above and a contract

referred to in Section 68(2) may not be appealed unless a processing authorisation is issued by the Market Court The authorisation shall be issued if

1) the processing of the case is important in terms of applying the Act in other similar matters

or

2) there is a cogent reason for it related to the procedures of the contracting authorityentity

Section 89

Time period for appeal

Unless otherwise prescribed in this Section an appeal must be lodged in writing within 14 days

from the date when the candidate or tenderer received the notice concerning the contract with the instructions for appeal

If the contracting authorityentity has concluded a public contract after the contract decision

was issued on the basis of Section 80 point 1 without complying with the standstill period

the appeal shall be lodged within 30 days from the date when the tenderer has received notice

of the decision with the instructions for appeal

An appeal before the Market Court shall be lodged within six months of the date of the contract

decision provided that the candidate or tenderer has received notice of the contract decision

and the contract decision or appeal instructions were materially deficient or the appeal instruc-tions have been missing altogether

If the contracting authorityentity has with regard to a contract above the EU threshold re-

ferred to in Section 12 above delivered a notice regarding a direct award of contract for publi-

cation in the Official journal of the European Union the complaint must be lodged within 14 days from the publication of the notice

If the notice referred to in subsection 4 has not been published the appeal concerning a direct award of contract shall be lodged

1) within 30 days of the date of publication of a contract-award notice has been published in

the Official Journal of the European Union or

2) within six months from the conclusion of the contract at the latest

Section 90

Notification of appeal to the contracting authorityentity and the list of procurement

cases

The appellant in a contract-related matter must notify the contracting authorityentity in writ-ing of referring the case to the Market Court for consideration

The notification must be delivered to the contracting authorityentity at the latest when the

complaint concerning the contract is delivered to the Market Court The notification shall be delivered to the address provided by the contracting authorityentity

38

The Market Court shall maintain and publish a list which is as comprehensive and up-to-date

as possible of contract-related matters pending at the Market Court

Section 91

The contracting authorityentity as the opponent and compensation of legal costs

In the proceedings regarding contract-related matters the contracting authorityentity shall be considered the opponent of the party or agency lodging the appeal

The provisions of Section 74 subsections 1 and 2 of the Administrative Judicial Procedure Act shall apply to the compensation of legal costs regarding contract-related matters

The provisions of Section 74 subsections 1 and 2 of the administrative Judicial Procedure Act

concerning public authorities or other public parties shall apply to the decision concerning the

liability to provide compensation for the legal costs of the opponent If one contracting authori-

tyentity has been responsible for the contracting procedure on behalf of the other contracting

authorities the obligation regarding compensation of legal costs may be placed on the con-

tracting authorityentity which acted on behalf of the other contracting authorities

Section 92

The effect of the appeal on concluding the contract

In case of a contract where the standstill period or the time limit referred to in section 81 must

be observed the contracting authorityentity may not conclude the contract if the matter has

been brought up for consideration by the Market Court

If the Market Court decides a case concerning enforcement or decides on the principal claim

before the standstill period or the time limit referred to in Section 81 has expired the contract-

ing authorityentity shall observe the standstill period or the time limit referred to in Section

81 until the end of the period notwithstanding the ruling of the Market Court

Section 93

Interim decisions of the Market Court

While the appeal is under consideration the Market Court may prohibit suspend or allow the

implementation of the decision concerning the contract award or order the contracting proce-

dure to be suspended otherwise as an interim measure for the duration of the proceedings in the Market Court

When deciding on the measure referred to in subsection 1 the Market Court shall take into

consideration that the harm caused by the measure to the opponent the rights of third par-

ties the security of the state or the public interest may not outweigh its benefits

However the decision prescribed in subsection 1 of this Section cannot be carried out in the case of a contract referred to in Section 68(2) of this Act

A legally trained member of the Market Court may alone issue a ruling as an interim measure

Section 94

Interim commitment of the contracting authorityentity

While the appeal is under consideration the contracting authorityentity may provide a written

undertaking to the Market Court stating that it will not enforce the decision concerning the contract for as long as the matter is pending in the Market Court

39

If the contracting authorityentity provides the Market Court with the undertaking referred to

in subsection 1 the Market Court will not issue without a specific reason a decision on the

obligation to interim prohibition on implementing the decision to award the contract

Section 95

Temporary organisation of a contract

If an appeal has been lodged against a contract before the Market Court the contracting au-

thorityentity may temporarily organise the contract by ordering it from a supplier who partici-

pated in the contracting procedure or from a previous supplier if the nature of the contract is

such that executing the contract cannot be postponed for the duration of the Market Court pro-ceedings

Temporary contract arrangements must not hinder the execution of the following items by means of a decision of the Market Court

1) the decision of the contracting authorityentity to cancel the contract in full or in part

2) prohibit the contracting authorityentity from applying any erroneous item included in the contract document or otherwise complying with an incorrect procedure or

3) require the contracting authorityentity to rectify its incorrect procedure

Section 96

Sanctions imposed by the Market Court

If during the contract procedure actions have been taken which are against this Act or the provisions based thereon or against European Union legislation the Market Court may

1) cancel the decision of the contracting authorityentity in full or in part

2) prohibit the contracting authorityentity from applying any erroneous item included in the contract document or otherwise complying with an incorrect procedure

3) require the contracting authorityentity to correct its erroneous procedure

4) order the contracting authorityentity to pay a compensatory fee to the party which would

have had a genuine chance to win the bidding competition had the procedure been correct

5) impose an ineffectiveness sanction on the contracting authorityentity

6) order the contracting authorityentity to pay an infringement fine to the state

7) reduce the contract term to end after a period of time specified by the Market Court has

passed

The provisions of Sections 97ndash100 shall apply to determining the sanctions mentioned in sub-

section 1 points 4ndash7 above When determining these sanctions the Market Court may consid-

er the contract to have been concluded on the basis of specific circumstances provided that

the contracting authorityentity has especially commenced the implementation of the contract

The ineffectiveness sanctions infringement fine and reduction of contract terms may only be

issued in contracts exceeding the EU thresholds referred to in Section 12 However an ineffec-tiveness sanction cannot be imposed in a service contract in accordance with Annex B

Only a compensatory fee can be imposed in a contract referred to in Section 68(2) of this Act

40

Section 97

Compensation

Provision for compensation may be made if the harm caused to the contracting authori-

tyentity rights of third parties state security and the public interest by the measure defined

in Section 96(1)(1ndash3) is considered to outweigh the benefits or if the petition has been initiat-

ed following the conclusion of the contract With respect to setting the amount of the compen-

satory fee account shall be taken of the nature of the infringement or omission by the con-

tracting authorityentity the value of the contract in question and the costs and damages in-

curred by the petitioner The Market Court may however decide not to prove for compensa-

tion if the contracting authorityentity has refrained from implementing the contract during the proceedings in the Market Court

Without a specific reason the amount of compensation shall not exceed 10 percent of the val-

ue of the contract

Section 98

Ineffectiveness

The Market Court may declare a contract ineffective if

1) the contracting authorityentity has made a direct award of contract without the basis re-ferred to in this Act and the procedures referred to in Section 81

2) the contracting authorityentity has concluded the contract although there is an obligation in the contract to observe a standstill period

3) the contracting authorityentity has concluded the contract contrary to Section 92 although

the procurement case has been submitted to the Market Court for a decision

In addition a requirement in the situation referred to in subsection 1 points 2 and 3 above is

that the contracting authorityentity has made another infringement contrary to this Act which has affected the chances of the appellant to win the contract

If the contracting authorityentity has concluded the contract in a competition based on the

framework agreement on the basis of Section 80 without observing the standstill period and if

a breach has been committed in the competition in respect of Section 27(2 or 3) such that this

has affected the chances of the appellant to win the contract the Market Court may declare the contract ineffective

The Market Court shall decide to which contractual obligations ineffectiveness shall apply Inef-

fectiveness shall apply only to unfulfilled contractual obligations

Section 99

Non-imposition of ineffectiveness

In the situations referred to in Section 98 above the Market Court may decide not to impose

ineffectiveness for compelling reasons related to the public interest or state security Economic

interests which are directly related to the contract may be deemed compelling only if ineffec-tiveness of the contract would exceptionally have inequitable consequences

The Market Court may not impose ineffectiveness if it would result in serious endangerment of

the implementation of a defence and security project essentially important with respect to

state security

Section 100

41

Infringement fines and reduction of the contract term

The Market Court may order a contracting authorityentity to pay the state an infringement

fine if

1) the Market Court has declared the contract ineffective

2) the contracting authorityentity has concluded the contract although there is an obligation in the contract to observe a standstill period

3) the contracting authorityentity has concluded the contract contrary to Section 92 although the procurement case has been submitted to the Market Court for a decision or

4) the Market Court has decided not to declare the contract ineffective for compelling reasons related to the public interest or state security in accordance with Section 99

In the situation referred to in subsection 1 point 4 above the Market Court may in addition to

or instead of imposing a sanction reduce the contract term so that it ends after a period of time specified by the Court

The Market Court may order a contracting authorityentity to pay the state an infringement

fine or reduce the contract term so that it ends after a period of time specified by the Court

this applies to service contracts referred to in Annex B of this Act the value of which exceeds

the EU threshold as defined in Section 12 if the contracting authorityentity

1) has made a direct award of contract without the basis referred to in this Act and the proce-dures referred to in Section 81 not having been complied with in the direct award

2) has concluded the contract although there is an obligation in the contract to observe the standstill period

3) has concluded the contract contrary to Section 92 although the procurement case has been submitted to the Market Court for a decision or

4) has concluded the contract in a competition based on a framework agreement on the basis

of Section 80 without observing the standstill period and if a breach has been committed in the

competition in respect of Section 27(2 or 3) such that this has affected the chances of the ap-pellant to win the contract

In addition a requirement in the situation referred to in subsection 3 points 2 and 3 above is

that the contracting authorityentity has made another infringement contrary to this Act which

has affected the chances of the appellant to win the contract

With respect to issuing a sanction the Market Court shall take into account the nature of the

mistake or omission by the contracting authorityentity and the value of the contract in ques-

tion The sanction shall not exceed 10 percent of the value of the contract

Section 101

Allocation of sanctions and cumulative effect

If one contracting authorityentity has been responsible for the contracting procedure on be-

half of the other contracting authorities the obligation to compensate for legal costs can be

placed on the contracting authorityentity that acted on behalf of the other contracting authori-

ties

With respect to the sanctions referred to in this Act the Market Court shall take into considera-

tion that the cumulative effect may not become unreasonable for the contracting authori-

tyentity or its contracting party

42

Section 102

Conditional fine

The Market Court may impose a conditional fine in order to underline the importance of com-

plying with the prohibitions or obligations referred to in this Act The provisions of the Act on

Conditional Fines (11131990) shall apply to the imposing of and sentencing to the payment of

conditional fines

If one contracting authorityentity has been responsible for the contracting procedure on be-

half of the other contracting authorities the obligation to compensate for costs can be placed

on the contracting authorityentity that acted on behalf of the other contracting authorities

Section 103

Notification of the Market Courts ruling

The ruling of the Market Court along with the instructions for appeal shall be verifiably notified under the provisions of the Administrative Judicial Procedure Act

With the consent of the appellant and the contracting authorityentity the Market Courts deci-

sion together with the instructions for appeal may be publicised using the electronic contact

information the aforementioned parties have provided to the Market Court

When electronic contact information is used the appellant and the contracting authorityentity

shall be deemed to have been notified of the decision and instructions for appeal on the date

on which the message concerning the matter is available in the recipientsrsquo reception equipment

so that the message can be handled The provisions of Section 77(1) shall apply to electronic

notification

Section 104

Prohibition to appeal

A case that is within the jurisdiction of the Market Court cannot be appealed against under the

provisions of the Local Government Act or the Administrative Judicial Procedure Act

A decision or ruling concerning a contract which has been excluded from the scope of applica-

tion of this Act on the basis of Section 6(2) and Sections 78 or 13 may not be appealed under

the Administrative Judicial Procedure Act or the Local Government Act The subcontractor may

not under the Administrative Judicial Procedure Act or the Local Government Act appeal the

decision or action taken by the contracting authorityentity concerning the subcontract

Section 105

Appeals against the decisions of the Market Court

Appeals against a ruling of the Market Court can be lodged in the Supreme Administrative Court in accordance with the Administrative Judicial Procedure Act

As referred to in Section 93(1) an appeal cannot be lodged against the ruling by the Market

Court in the Supreme Administrative Court A ruling by the Market Court does not prevent the

case from being reconsidered by the Market Court if the grounds for the previous ruling have

changed

If the Market Court has ruled that it will not grant the processing authorisation referred to in

Section 88(3) then an appeal against this ruling can only be lodged if the Supreme Adminis-

trative Court grants a leave to appeal

43

Section 106

Application of the Administrative Judicial Procedure Act

The Administrative Judicial Procedure Act shall apply to appeals unless otherwise provided by this Act

Section 107

Implementation of rulings

A ruling of the Market Court has to be observed notwithstanding any appeal unless the Su-

preme Administrative Court orders otherwise The ruling of the Market Court issuing the sanc-

tion referred to in Section 96(1)(4ndash7) may only be implemented on the basis of a final ruling

The implementation of a ruling concerning a sanction shall be supervised by the Legal Register

Centre The Legal Register Centre must be informed of any ruling by the Market Court and

Supreme Administrative Court to issue a sanction

Section 108

Compensation for damages

Those who cause damage to a candidate tenderer or supplier shall be liable to pay compensa-

tion for the damage they have caused while acting in breach of this Act or any regulations based thereon or the European Union law

However when the claim for damages refers to costs incurred as a result of the tendering pro-

cedure the candidate or tenderer is entitled to compensation if it can provide proof of the in-

correct procedure as defined in subsection 1 and that had the procedure been correct it would have had a genuine chance to win the contract

In respect of the cases defined in subsection 1 and 2 a Court of first instance shall be the

competent court in accordance with Chapter 10 of the Code of Judicial Procedure

Chapter 16

Further provisions

Section 109

Disclosure of information

Notwithstanding the provisions concerning confidentiality provided for in the Act on the Open-

ness of Government Activities or in any other act the contracting authorityentity shall supply

statistics and other information concerning the different stages of the contract and performed

contracts to the Finnish authorities and European Union bodies to monitor contracts and ex-

change information on the scale and to the time limit required by European Union law Pursu-

ant to this Act the Ministry of Economic Affairs and Employment has the right to forward in-

formation it has received to the European Union authorities notwithstanding the regulations on confidentiality

The contracting authorityentity shall draw up a written report on each contract and framework

agreement which includes essential information on the contract contract procedure and the

candidates and tenderers who participated as well as on the decisions made in connection with

44

the contract The report and its main content shall be forwarded on request to the European

Commission A separate report is not required if corresponding information can be found in the

contract decision or other documents

To document the course of the realised contract procedure the contracting authorityentity

shall implement necessary measures in an electronic format

More specific rules are laid down in a Government decree on the obligation to provide statistics

and the responsibility of the contracting authorityentity to draw up reports on contract proce-

dures and contract decisions as referred to in subsection 1 which are to be forwarded to the

European Union bodies

Section 110

Entry into force and transitional provisions

This Act enters into force on 1 January 2012

If a contract procedure is started before the entry into force of this Act the provisions that

were in force at the time when this Act entered into force shall be applied The contract proce-

dure shall be deemed to have commenced when the contract notice was published A contract

which does not require the publication of the contract notice shall be deemed to have com-

menced when the invitation to tender or a meeting is sent or negotiations with suppliers begin

Measures necessary for the implementation of this Act may be undertaken before the Actrsquos

entry into force

45

ANNEX A

Primary services

Group No

Matter CPV Reference No

1 Maintenance and repair services 50000000-5 50100000-6-50884000-4 (except 50310000-1-50324200-4 and 50116510-9 50190000-3 50229000-6 50243000-0) and 51000000-9-51900000-1

2 Services related to international military assistance

75211300-1

3 Defence services military defence services and civil defence services

75220000-4 75221000-1 75222000-8

4 Investigation and security services 79700000-1-79720000-7

5 Land transport services 60000000-8 60100000-9-60183000-4 (except 60160000-7 60161000-4) and 64120000-3-64121200-2

6 Air transport services for passengers and freight except transport of mail

60400000-2 60410000-5-60424120-3 (except 60411000-2 60421000-5) 60440000-4-60445000-9 and 60500000-3

7 Transport of mail by land and by air 60160000-7 60161000-4 60411000-2 60421000-5

8 Railway transport services 60200000-0-60220000-6

9 Sea transport services 60600000-4-60653000-0 and 63727000-1-63727200-3

10 Support and auxiliary transport services 63100000-0-63111000-0 63120000-6-63121100-4 63122000-0 63512000-1 and 63520000-0-6370000-6

11 Telecommunications services 64200000-8-64228200-2 72318000-7 and 72700000-7-72720000-3

12 Financial services insurance services 66500000-5-66720000-3

13 Data-processing and related services 50310000-1-50324200-4 72000000-5-72920000-5 (except 72318000-7 and 72700000-7-72720000-3) 79342410-4 9342410-4

14 Research and development services(sup1) and evaluation tests

73000000-2-73436000-7

15 Accounting auditing and bookkeeping services

79210000-9-79212500-8

16 Management consulting(sup2) and related services

73200000-4-73220000-0 79400000-8-79421200-3 and 79342000-3 79342100-4 79342300-6 79342320-2 79342321-9 79910000-6 79991000-7 98362000-8

17 Architectural services engineering services and integrated engineering services urban planning and landscape architectural services related scientific and technical consulting services technical testing and analysis services

71000000-8-71900000-7(except 71550000-8) and 79994000-8

18 Building cleaning services and building and property management services

70300000-4-70340000-0 and 90900000-6-90924000-3

19 Sewage and refuse disposal services 90400000-1 to 90743200-9 (except 90712200-3)

46

sanitation and similar services 90910000-9-90920000-2 and 50190000-3 50229000-6 50243000-0

20 Training and simulation services in the fields of defence and security

80330000-6 80600000-0 80610000-3 80620000-6 80630000-9 80640000-2 80650000-5 80660000-8

(sup1) Except the research and development services referred to in Section 13(2)(5) (sup2) Except arbitration and conciliation services ANNEX B Secondary services

Group No

Matter CPV Reference No

21 Hotel and restaurant services 55100000-1-55524000-9 and 98340000-8-98341100-6

22 Support and auxiliary transport services 63000000-9-63734000-3 (except 63711200-8 63712700-0 63712710-3) 6372700-1-63727200-3 and 98361000-1

23 Legal services 79100000-5-79140000-7

24 Employment and personnel recruitment services(sup1)

79600000-0-79635000-4 (except 79611000-0 79632000-3 79633000-0) and 98500000-8-98514000-9

25 Health and social services 79611000-085000000-9 and -85323000-9 (except 85321000-5 and 85322000-2)

26 Other services

(sup1) Except employment contracts

47

ANNEX C NACEsup1ordm

Main category F CONSTRUCTION CPV code

2-digit level

3-digit level

4-digit level

Description Comments

45 Construction This two-digit level includes the following construction of new buildings and works reconstruction and common repairs

45000000

451 Site preparation

45100000

4511 Demolition and wreck-ing of buildings earth moving

This four-digit level includes the following - demolition of buildings and other structures - clearing of building sites and earth moving site excavation landfill and levelling trench dig-ging quarrying blasting etc - site preparation for mining

- overburden removal and other development and prepa-ration of mines and mining sites

This four-digit level also includes - building site underdrainage - drainage of agricultural or forestry land

45110000

4512 Test drilling This four-digit level includes the following - test drilling test boring and sampling for construction geophysical geological or similar purposes This four-digit level excludes the following - drilling of oil or gas wells comp 1120 - water well drilling 4525

45120000

sup1deg Council regulation (EEC) No 303790 (Official Journal of the European Union 293 24 October 1990 p 1) on the statistical classification of economic activities in the European Community issued on 9 October 1990 regulation as amended by Commission Regulation (EEC) No 76193 (Official Journal of the European Union L 83 3 April 1993 p 1) If there are differences of opinion between CPV and NACE NACE nomenclature shall apply

48

- shaft sinking comp 4525 - oil and gas field exploration geophysical geological and seismic surveying comp 7420

452 Building complete constructions or parts thereof

45200000

4521 Building work This four-digit level includes the following - Construction of all types of buildings - civil engineering and hydraulic engineering works - building of bridges including those for elevated highways metro tunnels - construction of long-distance pipelines communication cables and long-distance networks for power lines - construction of long-distance pipelines telecommunication ca-bles and municipal network power lines related installation work - on-site assembly and erection of pre-fabricated constructions This four-digit level excludes the following - services related to oil and gas extraction comp 1120 - erection of complete prefabricat-ed constructions from self-manufactured parts not of con-crete comp 20 26 28 - construction work other than buildings for stadiums swimming pools gymnasiums tennis courts golf courses and other sports installations comp 4523 building installation comp 453 - building completion comp 454 - architectural and engineering services comp 7420 - project management for construction comp 7420

45210000 Except 45213316 45220000 45231000 45232000

4522 Erection and covering of roofs

This four-digit level includes the following - erection of roofs - roof covering - waterproofing

45261000

49

4523 Construction of highways streets airports and sports equipment

This four-digit level includes the following - construction of highways streets other vehicular and pedestrian ways - construction of railways - construction of airfield runways - construction work other than build-ings for stadiums swimming pools gymnasiums tennis courts golf courses and other sports installations - painting of markings on road surfaces and car parks This four-digit level excludes the following - preliminary earth moving comp 4511

45212212 and DA03 45230000 except 45231000 45232000 45234115

4524 Construction of water projects

This four-digit level includes the following building works - construction of waterways harbour and river works marinas locks etc - construction of dams and breakwaters - dredging - subsurface work

45240000

4525 Other construction work

This four-digit level includes the following - construction activities specialising in one aspect common to different kinds of structures requiring specialised skill or equipment - construction of foundations including pile driving - water well drilling and construction shaft sinking - erection of non-self-manufactured steel frame elements - steel bending - bricklaying and stone setting - erecting and dismantling of scaffolds and work platforms including rental of scaffolds and work platforms - erection of chimneys and industrial ovens This four-digit level excludes the following - rental of scaffolds without erecting and dismantling comp 7132

45250000 45262000

453 Building installation 45300000

4531 Installation of electri-cal wiring and fittings

This four-digit level includes the installation in buildings or other

45213316 45310000

50

construction projects of - electrical wiring and fittings - telecommunications systems - electrical heating systems - residential antennas - fire alarms - burglar alarm systems - lifts and escalators - lightning conductors etc

Except 45316000

4532 Insulation work This four-digit level includes the following - installation in buildings or other construction projects of thermal sound or vibration insulation This four-digit level excludes the following - waterproofing comp 4522

45320000

4533 Plumbing This four-digit level includes the installation in buildings or other construction projects of the following - plumbing and sanitary equipment and fittings - gas fittings - heating ventilation refrigeration or air-conditioning equipment and ducts - sprinkler systems This four-digit level excludes the following - installation of electrical heating systems comp 4531

45330000

4534 Other installation work

This four-digit level includes the fol-lowing - installation or other construction of illumination and signalling systems for roads railways airports and harbours - installation in buildings or other construction projects of fittings and fixtures

45234115 45316000 45340000

454 Building completion 45400000

4541 Plastering This four-digit level includes the following - application in building or other construction projects of interior and exterior plaster or stucco and other similar lathing materials

45410000

4542 Joinery installation This four-digit level includes the following - installation of non-self-manufactured doors windows door

45420000

51

and window frames fitted kitchens staircases and shop fittings made of wood or other materials - completion of interiors such as ceilings wooden wall coverings wall paneling installation of movable partitions etc This four-digit level excludes the following - laying of parquet and other wooden floor coverings comp 4543

52

4543 Floor covering and wall upholstery

This four-digit level includes the following - covering or tiling of buildings or other structures using - ceramic concrete or stone wall or floor tiles or stones - parquet or other wooden floor covering - wall-to-wall carpeting or linoleum also rubber or plastic floor covering - wall or floor covering made of mosaic marble granite or slate - wallpaper

45430000

4544 Painting and glazing This four-digit level includes the following - interior and exterior painting of buildings - exterior painting of other structures - installation of mirrors glass etc This four-digit level excludes the following - installation of windows comp 4542

45440000

4545 Other building completion

This four-digit level includes the following - construction of private swimming pools - cleaning the exterior surfaces of buildings using steam sandblasting or other similar method - other building completion work not classified elsewhere This four-digit level excludes the following - cleaning of buildings and other structures comp 7470

45212212 and DA03 45450000

455 Rental of construction or dismantling equip-ment with operators

45500000

4550 Rental of construction or dismantling equip-ment with operators

This four-digit level excludes the following - rental of construction or dismantling machines and equipment without operators comp 7132

45500000

36

shall not apply pursuant to Section 6(2) and Sections 7 8 or 13 A decision made on account

of such a contract rectification may not be appealed against in the Market Court or under the Administrative Judicial Procedure Act or Local Government (Act 3651995)

Chapter 14

Public access to the contract documents

Section 86

Application of the provisions concerning public access to the contract documents

The Act on the Openness of Government Activities (6211999) shall apply to public access to

the documents of the contracting authorityentity and the fees charged for the documents if

the contracting authorityentity is the authority referred to in Section 4 of the aforementioned

Act or if it is obliged to comply with that Act on the basis of a provision contained elsewhere in the Act

In terms of the right of parties other than the participants in the competitive bidding conducted

by the contracting authorityentity referred to in subsection 1 to have access to the docu-

ments drawn up and received for processing of the tender and the confidentiality obligation of

those employed by the contracting authorityentity the provisions of the Act on the Openness

of Government Activities shall apply to the right of concerned parties to have access to the

document to how public access to the document is determined and to the processing and resolving of the matter concerning access to information

The decision of the contracting authorityentity which has resolved the matter concerning ac-

cess to information can be appealed in accordance with the provisions of Section 33 of the Act

on the Openness of Government Activities The Supreme Administrative Court in whose judicial

district the contracting authorityentity is located is the competent Supreme Administrative

Court for considering the appeal submitted on the basis of a decision made by a party other

than the contracting authorityentity acting as an authority

Chapter 15

Appealing and the implications thereof

Section 87

Parties entitled to appeal

A concerned party may appeal the matter to the Market Court by issuing a complaint A sub-

contractor does not have the position of an interested party referred to in subsection 1 of this Section in terms of the matter concerning the contract

In matters concerning control procedures of the European Union the Ministry of Economic Af-

fairs and Employment may also refer the matter to the Market Court for consideration

Section 88

Object of the appeal

An appeal may be lodged before the Market Court against an award decision of the contracting

authorityentity referred to in this Act or other decision reached by the contracting authori-

tyentity during the contracting procedure which affects the status of the candidate or the ten-derer

37

An appeal may not be lodged before the Market Court against an award decision or other deci-

sion of the contracting authorityentity which concerns only the preparation of the contracting

procedure An appeal may not be lodged against a decision or other measure taken by the

supplier selected as a contracting party concerning a subcontracting agreement or an award

decision or determination made by the contracting authorityentity during the implementation of the contract

A contract based on a framework agreement referred to in Section 27 above and a contract

referred to in Section 68(2) may not be appealed unless a processing authorisation is issued by the Market Court The authorisation shall be issued if

1) the processing of the case is important in terms of applying the Act in other similar matters

or

2) there is a cogent reason for it related to the procedures of the contracting authorityentity

Section 89

Time period for appeal

Unless otherwise prescribed in this Section an appeal must be lodged in writing within 14 days

from the date when the candidate or tenderer received the notice concerning the contract with the instructions for appeal

If the contracting authorityentity has concluded a public contract after the contract decision

was issued on the basis of Section 80 point 1 without complying with the standstill period

the appeal shall be lodged within 30 days from the date when the tenderer has received notice

of the decision with the instructions for appeal

An appeal before the Market Court shall be lodged within six months of the date of the contract

decision provided that the candidate or tenderer has received notice of the contract decision

and the contract decision or appeal instructions were materially deficient or the appeal instruc-tions have been missing altogether

If the contracting authorityentity has with regard to a contract above the EU threshold re-

ferred to in Section 12 above delivered a notice regarding a direct award of contract for publi-

cation in the Official journal of the European Union the complaint must be lodged within 14 days from the publication of the notice

If the notice referred to in subsection 4 has not been published the appeal concerning a direct award of contract shall be lodged

1) within 30 days of the date of publication of a contract-award notice has been published in

the Official Journal of the European Union or

2) within six months from the conclusion of the contract at the latest

Section 90

Notification of appeal to the contracting authorityentity and the list of procurement

cases

The appellant in a contract-related matter must notify the contracting authorityentity in writ-ing of referring the case to the Market Court for consideration

The notification must be delivered to the contracting authorityentity at the latest when the

complaint concerning the contract is delivered to the Market Court The notification shall be delivered to the address provided by the contracting authorityentity

38

The Market Court shall maintain and publish a list which is as comprehensive and up-to-date

as possible of contract-related matters pending at the Market Court

Section 91

The contracting authorityentity as the opponent and compensation of legal costs

In the proceedings regarding contract-related matters the contracting authorityentity shall be considered the opponent of the party or agency lodging the appeal

The provisions of Section 74 subsections 1 and 2 of the Administrative Judicial Procedure Act shall apply to the compensation of legal costs regarding contract-related matters

The provisions of Section 74 subsections 1 and 2 of the administrative Judicial Procedure Act

concerning public authorities or other public parties shall apply to the decision concerning the

liability to provide compensation for the legal costs of the opponent If one contracting authori-

tyentity has been responsible for the contracting procedure on behalf of the other contracting

authorities the obligation regarding compensation of legal costs may be placed on the con-

tracting authorityentity which acted on behalf of the other contracting authorities

Section 92

The effect of the appeal on concluding the contract

In case of a contract where the standstill period or the time limit referred to in section 81 must

be observed the contracting authorityentity may not conclude the contract if the matter has

been brought up for consideration by the Market Court

If the Market Court decides a case concerning enforcement or decides on the principal claim

before the standstill period or the time limit referred to in Section 81 has expired the contract-

ing authorityentity shall observe the standstill period or the time limit referred to in Section

81 until the end of the period notwithstanding the ruling of the Market Court

Section 93

Interim decisions of the Market Court

While the appeal is under consideration the Market Court may prohibit suspend or allow the

implementation of the decision concerning the contract award or order the contracting proce-

dure to be suspended otherwise as an interim measure for the duration of the proceedings in the Market Court

When deciding on the measure referred to in subsection 1 the Market Court shall take into

consideration that the harm caused by the measure to the opponent the rights of third par-

ties the security of the state or the public interest may not outweigh its benefits

However the decision prescribed in subsection 1 of this Section cannot be carried out in the case of a contract referred to in Section 68(2) of this Act

A legally trained member of the Market Court may alone issue a ruling as an interim measure

Section 94

Interim commitment of the contracting authorityentity

While the appeal is under consideration the contracting authorityentity may provide a written

undertaking to the Market Court stating that it will not enforce the decision concerning the contract for as long as the matter is pending in the Market Court

39

If the contracting authorityentity provides the Market Court with the undertaking referred to

in subsection 1 the Market Court will not issue without a specific reason a decision on the

obligation to interim prohibition on implementing the decision to award the contract

Section 95

Temporary organisation of a contract

If an appeal has been lodged against a contract before the Market Court the contracting au-

thorityentity may temporarily organise the contract by ordering it from a supplier who partici-

pated in the contracting procedure or from a previous supplier if the nature of the contract is

such that executing the contract cannot be postponed for the duration of the Market Court pro-ceedings

Temporary contract arrangements must not hinder the execution of the following items by means of a decision of the Market Court

1) the decision of the contracting authorityentity to cancel the contract in full or in part

2) prohibit the contracting authorityentity from applying any erroneous item included in the contract document or otherwise complying with an incorrect procedure or

3) require the contracting authorityentity to rectify its incorrect procedure

Section 96

Sanctions imposed by the Market Court

If during the contract procedure actions have been taken which are against this Act or the provisions based thereon or against European Union legislation the Market Court may

1) cancel the decision of the contracting authorityentity in full or in part

2) prohibit the contracting authorityentity from applying any erroneous item included in the contract document or otherwise complying with an incorrect procedure

3) require the contracting authorityentity to correct its erroneous procedure

4) order the contracting authorityentity to pay a compensatory fee to the party which would

have had a genuine chance to win the bidding competition had the procedure been correct

5) impose an ineffectiveness sanction on the contracting authorityentity

6) order the contracting authorityentity to pay an infringement fine to the state

7) reduce the contract term to end after a period of time specified by the Market Court has

passed

The provisions of Sections 97ndash100 shall apply to determining the sanctions mentioned in sub-

section 1 points 4ndash7 above When determining these sanctions the Market Court may consid-

er the contract to have been concluded on the basis of specific circumstances provided that

the contracting authorityentity has especially commenced the implementation of the contract

The ineffectiveness sanctions infringement fine and reduction of contract terms may only be

issued in contracts exceeding the EU thresholds referred to in Section 12 However an ineffec-tiveness sanction cannot be imposed in a service contract in accordance with Annex B

Only a compensatory fee can be imposed in a contract referred to in Section 68(2) of this Act

40

Section 97

Compensation

Provision for compensation may be made if the harm caused to the contracting authori-

tyentity rights of third parties state security and the public interest by the measure defined

in Section 96(1)(1ndash3) is considered to outweigh the benefits or if the petition has been initiat-

ed following the conclusion of the contract With respect to setting the amount of the compen-

satory fee account shall be taken of the nature of the infringement or omission by the con-

tracting authorityentity the value of the contract in question and the costs and damages in-

curred by the petitioner The Market Court may however decide not to prove for compensa-

tion if the contracting authorityentity has refrained from implementing the contract during the proceedings in the Market Court

Without a specific reason the amount of compensation shall not exceed 10 percent of the val-

ue of the contract

Section 98

Ineffectiveness

The Market Court may declare a contract ineffective if

1) the contracting authorityentity has made a direct award of contract without the basis re-ferred to in this Act and the procedures referred to in Section 81

2) the contracting authorityentity has concluded the contract although there is an obligation in the contract to observe a standstill period

3) the contracting authorityentity has concluded the contract contrary to Section 92 although

the procurement case has been submitted to the Market Court for a decision

In addition a requirement in the situation referred to in subsection 1 points 2 and 3 above is

that the contracting authorityentity has made another infringement contrary to this Act which has affected the chances of the appellant to win the contract

If the contracting authorityentity has concluded the contract in a competition based on the

framework agreement on the basis of Section 80 without observing the standstill period and if

a breach has been committed in the competition in respect of Section 27(2 or 3) such that this

has affected the chances of the appellant to win the contract the Market Court may declare the contract ineffective

The Market Court shall decide to which contractual obligations ineffectiveness shall apply Inef-

fectiveness shall apply only to unfulfilled contractual obligations

Section 99

Non-imposition of ineffectiveness

In the situations referred to in Section 98 above the Market Court may decide not to impose

ineffectiveness for compelling reasons related to the public interest or state security Economic

interests which are directly related to the contract may be deemed compelling only if ineffec-tiveness of the contract would exceptionally have inequitable consequences

The Market Court may not impose ineffectiveness if it would result in serious endangerment of

the implementation of a defence and security project essentially important with respect to

state security

Section 100

41

Infringement fines and reduction of the contract term

The Market Court may order a contracting authorityentity to pay the state an infringement

fine if

1) the Market Court has declared the contract ineffective

2) the contracting authorityentity has concluded the contract although there is an obligation in the contract to observe a standstill period

3) the contracting authorityentity has concluded the contract contrary to Section 92 although the procurement case has been submitted to the Market Court for a decision or

4) the Market Court has decided not to declare the contract ineffective for compelling reasons related to the public interest or state security in accordance with Section 99

In the situation referred to in subsection 1 point 4 above the Market Court may in addition to

or instead of imposing a sanction reduce the contract term so that it ends after a period of time specified by the Court

The Market Court may order a contracting authorityentity to pay the state an infringement

fine or reduce the contract term so that it ends after a period of time specified by the Court

this applies to service contracts referred to in Annex B of this Act the value of which exceeds

the EU threshold as defined in Section 12 if the contracting authorityentity

1) has made a direct award of contract without the basis referred to in this Act and the proce-dures referred to in Section 81 not having been complied with in the direct award

2) has concluded the contract although there is an obligation in the contract to observe the standstill period

3) has concluded the contract contrary to Section 92 although the procurement case has been submitted to the Market Court for a decision or

4) has concluded the contract in a competition based on a framework agreement on the basis

of Section 80 without observing the standstill period and if a breach has been committed in the

competition in respect of Section 27(2 or 3) such that this has affected the chances of the ap-pellant to win the contract

In addition a requirement in the situation referred to in subsection 3 points 2 and 3 above is

that the contracting authorityentity has made another infringement contrary to this Act which

has affected the chances of the appellant to win the contract

With respect to issuing a sanction the Market Court shall take into account the nature of the

mistake or omission by the contracting authorityentity and the value of the contract in ques-

tion The sanction shall not exceed 10 percent of the value of the contract

Section 101

Allocation of sanctions and cumulative effect

If one contracting authorityentity has been responsible for the contracting procedure on be-

half of the other contracting authorities the obligation to compensate for legal costs can be

placed on the contracting authorityentity that acted on behalf of the other contracting authori-

ties

With respect to the sanctions referred to in this Act the Market Court shall take into considera-

tion that the cumulative effect may not become unreasonable for the contracting authori-

tyentity or its contracting party

42

Section 102

Conditional fine

The Market Court may impose a conditional fine in order to underline the importance of com-

plying with the prohibitions or obligations referred to in this Act The provisions of the Act on

Conditional Fines (11131990) shall apply to the imposing of and sentencing to the payment of

conditional fines

If one contracting authorityentity has been responsible for the contracting procedure on be-

half of the other contracting authorities the obligation to compensate for costs can be placed

on the contracting authorityentity that acted on behalf of the other contracting authorities

Section 103

Notification of the Market Courts ruling

The ruling of the Market Court along with the instructions for appeal shall be verifiably notified under the provisions of the Administrative Judicial Procedure Act

With the consent of the appellant and the contracting authorityentity the Market Courts deci-

sion together with the instructions for appeal may be publicised using the electronic contact

information the aforementioned parties have provided to the Market Court

When electronic contact information is used the appellant and the contracting authorityentity

shall be deemed to have been notified of the decision and instructions for appeal on the date

on which the message concerning the matter is available in the recipientsrsquo reception equipment

so that the message can be handled The provisions of Section 77(1) shall apply to electronic

notification

Section 104

Prohibition to appeal

A case that is within the jurisdiction of the Market Court cannot be appealed against under the

provisions of the Local Government Act or the Administrative Judicial Procedure Act

A decision or ruling concerning a contract which has been excluded from the scope of applica-

tion of this Act on the basis of Section 6(2) and Sections 78 or 13 may not be appealed under

the Administrative Judicial Procedure Act or the Local Government Act The subcontractor may

not under the Administrative Judicial Procedure Act or the Local Government Act appeal the

decision or action taken by the contracting authorityentity concerning the subcontract

Section 105

Appeals against the decisions of the Market Court

Appeals against a ruling of the Market Court can be lodged in the Supreme Administrative Court in accordance with the Administrative Judicial Procedure Act

As referred to in Section 93(1) an appeal cannot be lodged against the ruling by the Market

Court in the Supreme Administrative Court A ruling by the Market Court does not prevent the

case from being reconsidered by the Market Court if the grounds for the previous ruling have

changed

If the Market Court has ruled that it will not grant the processing authorisation referred to in

Section 88(3) then an appeal against this ruling can only be lodged if the Supreme Adminis-

trative Court grants a leave to appeal

43

Section 106

Application of the Administrative Judicial Procedure Act

The Administrative Judicial Procedure Act shall apply to appeals unless otherwise provided by this Act

Section 107

Implementation of rulings

A ruling of the Market Court has to be observed notwithstanding any appeal unless the Su-

preme Administrative Court orders otherwise The ruling of the Market Court issuing the sanc-

tion referred to in Section 96(1)(4ndash7) may only be implemented on the basis of a final ruling

The implementation of a ruling concerning a sanction shall be supervised by the Legal Register

Centre The Legal Register Centre must be informed of any ruling by the Market Court and

Supreme Administrative Court to issue a sanction

Section 108

Compensation for damages

Those who cause damage to a candidate tenderer or supplier shall be liable to pay compensa-

tion for the damage they have caused while acting in breach of this Act or any regulations based thereon or the European Union law

However when the claim for damages refers to costs incurred as a result of the tendering pro-

cedure the candidate or tenderer is entitled to compensation if it can provide proof of the in-

correct procedure as defined in subsection 1 and that had the procedure been correct it would have had a genuine chance to win the contract

In respect of the cases defined in subsection 1 and 2 a Court of first instance shall be the

competent court in accordance with Chapter 10 of the Code of Judicial Procedure

Chapter 16

Further provisions

Section 109

Disclosure of information

Notwithstanding the provisions concerning confidentiality provided for in the Act on the Open-

ness of Government Activities or in any other act the contracting authorityentity shall supply

statistics and other information concerning the different stages of the contract and performed

contracts to the Finnish authorities and European Union bodies to monitor contracts and ex-

change information on the scale and to the time limit required by European Union law Pursu-

ant to this Act the Ministry of Economic Affairs and Employment has the right to forward in-

formation it has received to the European Union authorities notwithstanding the regulations on confidentiality

The contracting authorityentity shall draw up a written report on each contract and framework

agreement which includes essential information on the contract contract procedure and the

candidates and tenderers who participated as well as on the decisions made in connection with

44

the contract The report and its main content shall be forwarded on request to the European

Commission A separate report is not required if corresponding information can be found in the

contract decision or other documents

To document the course of the realised contract procedure the contracting authorityentity

shall implement necessary measures in an electronic format

More specific rules are laid down in a Government decree on the obligation to provide statistics

and the responsibility of the contracting authorityentity to draw up reports on contract proce-

dures and contract decisions as referred to in subsection 1 which are to be forwarded to the

European Union bodies

Section 110

Entry into force and transitional provisions

This Act enters into force on 1 January 2012

If a contract procedure is started before the entry into force of this Act the provisions that

were in force at the time when this Act entered into force shall be applied The contract proce-

dure shall be deemed to have commenced when the contract notice was published A contract

which does not require the publication of the contract notice shall be deemed to have com-

menced when the invitation to tender or a meeting is sent or negotiations with suppliers begin

Measures necessary for the implementation of this Act may be undertaken before the Actrsquos

entry into force

45

ANNEX A

Primary services

Group No

Matter CPV Reference No

1 Maintenance and repair services 50000000-5 50100000-6-50884000-4 (except 50310000-1-50324200-4 and 50116510-9 50190000-3 50229000-6 50243000-0) and 51000000-9-51900000-1

2 Services related to international military assistance

75211300-1

3 Defence services military defence services and civil defence services

75220000-4 75221000-1 75222000-8

4 Investigation and security services 79700000-1-79720000-7

5 Land transport services 60000000-8 60100000-9-60183000-4 (except 60160000-7 60161000-4) and 64120000-3-64121200-2

6 Air transport services for passengers and freight except transport of mail

60400000-2 60410000-5-60424120-3 (except 60411000-2 60421000-5) 60440000-4-60445000-9 and 60500000-3

7 Transport of mail by land and by air 60160000-7 60161000-4 60411000-2 60421000-5

8 Railway transport services 60200000-0-60220000-6

9 Sea transport services 60600000-4-60653000-0 and 63727000-1-63727200-3

10 Support and auxiliary transport services 63100000-0-63111000-0 63120000-6-63121100-4 63122000-0 63512000-1 and 63520000-0-6370000-6

11 Telecommunications services 64200000-8-64228200-2 72318000-7 and 72700000-7-72720000-3

12 Financial services insurance services 66500000-5-66720000-3

13 Data-processing and related services 50310000-1-50324200-4 72000000-5-72920000-5 (except 72318000-7 and 72700000-7-72720000-3) 79342410-4 9342410-4

14 Research and development services(sup1) and evaluation tests

73000000-2-73436000-7

15 Accounting auditing and bookkeeping services

79210000-9-79212500-8

16 Management consulting(sup2) and related services

73200000-4-73220000-0 79400000-8-79421200-3 and 79342000-3 79342100-4 79342300-6 79342320-2 79342321-9 79910000-6 79991000-7 98362000-8

17 Architectural services engineering services and integrated engineering services urban planning and landscape architectural services related scientific and technical consulting services technical testing and analysis services

71000000-8-71900000-7(except 71550000-8) and 79994000-8

18 Building cleaning services and building and property management services

70300000-4-70340000-0 and 90900000-6-90924000-3

19 Sewage and refuse disposal services 90400000-1 to 90743200-9 (except 90712200-3)

46

sanitation and similar services 90910000-9-90920000-2 and 50190000-3 50229000-6 50243000-0

20 Training and simulation services in the fields of defence and security

80330000-6 80600000-0 80610000-3 80620000-6 80630000-9 80640000-2 80650000-5 80660000-8

(sup1) Except the research and development services referred to in Section 13(2)(5) (sup2) Except arbitration and conciliation services ANNEX B Secondary services

Group No

Matter CPV Reference No

21 Hotel and restaurant services 55100000-1-55524000-9 and 98340000-8-98341100-6

22 Support and auxiliary transport services 63000000-9-63734000-3 (except 63711200-8 63712700-0 63712710-3) 6372700-1-63727200-3 and 98361000-1

23 Legal services 79100000-5-79140000-7

24 Employment and personnel recruitment services(sup1)

79600000-0-79635000-4 (except 79611000-0 79632000-3 79633000-0) and 98500000-8-98514000-9

25 Health and social services 79611000-085000000-9 and -85323000-9 (except 85321000-5 and 85322000-2)

26 Other services

(sup1) Except employment contracts

47

ANNEX C NACEsup1ordm

Main category F CONSTRUCTION CPV code

2-digit level

3-digit level

4-digit level

Description Comments

45 Construction This two-digit level includes the following construction of new buildings and works reconstruction and common repairs

45000000

451 Site preparation

45100000

4511 Demolition and wreck-ing of buildings earth moving

This four-digit level includes the following - demolition of buildings and other structures - clearing of building sites and earth moving site excavation landfill and levelling trench dig-ging quarrying blasting etc - site preparation for mining

- overburden removal and other development and prepa-ration of mines and mining sites

This four-digit level also includes - building site underdrainage - drainage of agricultural or forestry land

45110000

4512 Test drilling This four-digit level includes the following - test drilling test boring and sampling for construction geophysical geological or similar purposes This four-digit level excludes the following - drilling of oil or gas wells comp 1120 - water well drilling 4525

45120000

sup1deg Council regulation (EEC) No 303790 (Official Journal of the European Union 293 24 October 1990 p 1) on the statistical classification of economic activities in the European Community issued on 9 October 1990 regulation as amended by Commission Regulation (EEC) No 76193 (Official Journal of the European Union L 83 3 April 1993 p 1) If there are differences of opinion between CPV and NACE NACE nomenclature shall apply

48

- shaft sinking comp 4525 - oil and gas field exploration geophysical geological and seismic surveying comp 7420

452 Building complete constructions or parts thereof

45200000

4521 Building work This four-digit level includes the following - Construction of all types of buildings - civil engineering and hydraulic engineering works - building of bridges including those for elevated highways metro tunnels - construction of long-distance pipelines communication cables and long-distance networks for power lines - construction of long-distance pipelines telecommunication ca-bles and municipal network power lines related installation work - on-site assembly and erection of pre-fabricated constructions This four-digit level excludes the following - services related to oil and gas extraction comp 1120 - erection of complete prefabricat-ed constructions from self-manufactured parts not of con-crete comp 20 26 28 - construction work other than buildings for stadiums swimming pools gymnasiums tennis courts golf courses and other sports installations comp 4523 building installation comp 453 - building completion comp 454 - architectural and engineering services comp 7420 - project management for construction comp 7420

45210000 Except 45213316 45220000 45231000 45232000

4522 Erection and covering of roofs

This four-digit level includes the following - erection of roofs - roof covering - waterproofing

45261000

49

4523 Construction of highways streets airports and sports equipment

This four-digit level includes the following - construction of highways streets other vehicular and pedestrian ways - construction of railways - construction of airfield runways - construction work other than build-ings for stadiums swimming pools gymnasiums tennis courts golf courses and other sports installations - painting of markings on road surfaces and car parks This four-digit level excludes the following - preliminary earth moving comp 4511

45212212 and DA03 45230000 except 45231000 45232000 45234115

4524 Construction of water projects

This four-digit level includes the following building works - construction of waterways harbour and river works marinas locks etc - construction of dams and breakwaters - dredging - subsurface work

45240000

4525 Other construction work

This four-digit level includes the following - construction activities specialising in one aspect common to different kinds of structures requiring specialised skill or equipment - construction of foundations including pile driving - water well drilling and construction shaft sinking - erection of non-self-manufactured steel frame elements - steel bending - bricklaying and stone setting - erecting and dismantling of scaffolds and work platforms including rental of scaffolds and work platforms - erection of chimneys and industrial ovens This four-digit level excludes the following - rental of scaffolds without erecting and dismantling comp 7132

45250000 45262000

453 Building installation 45300000

4531 Installation of electri-cal wiring and fittings

This four-digit level includes the installation in buildings or other

45213316 45310000

50

construction projects of - electrical wiring and fittings - telecommunications systems - electrical heating systems - residential antennas - fire alarms - burglar alarm systems - lifts and escalators - lightning conductors etc

Except 45316000

4532 Insulation work This four-digit level includes the following - installation in buildings or other construction projects of thermal sound or vibration insulation This four-digit level excludes the following - waterproofing comp 4522

45320000

4533 Plumbing This four-digit level includes the installation in buildings or other construction projects of the following - plumbing and sanitary equipment and fittings - gas fittings - heating ventilation refrigeration or air-conditioning equipment and ducts - sprinkler systems This four-digit level excludes the following - installation of electrical heating systems comp 4531

45330000

4534 Other installation work

This four-digit level includes the fol-lowing - installation or other construction of illumination and signalling systems for roads railways airports and harbours - installation in buildings or other construction projects of fittings and fixtures

45234115 45316000 45340000

454 Building completion 45400000

4541 Plastering This four-digit level includes the following - application in building or other construction projects of interior and exterior plaster or stucco and other similar lathing materials

45410000

4542 Joinery installation This four-digit level includes the following - installation of non-self-manufactured doors windows door

45420000

51

and window frames fitted kitchens staircases and shop fittings made of wood or other materials - completion of interiors such as ceilings wooden wall coverings wall paneling installation of movable partitions etc This four-digit level excludes the following - laying of parquet and other wooden floor coverings comp 4543

52

4543 Floor covering and wall upholstery

This four-digit level includes the following - covering or tiling of buildings or other structures using - ceramic concrete or stone wall or floor tiles or stones - parquet or other wooden floor covering - wall-to-wall carpeting or linoleum also rubber or plastic floor covering - wall or floor covering made of mosaic marble granite or slate - wallpaper

45430000

4544 Painting and glazing This four-digit level includes the following - interior and exterior painting of buildings - exterior painting of other structures - installation of mirrors glass etc This four-digit level excludes the following - installation of windows comp 4542

45440000

4545 Other building completion

This four-digit level includes the following - construction of private swimming pools - cleaning the exterior surfaces of buildings using steam sandblasting or other similar method - other building completion work not classified elsewhere This four-digit level excludes the following - cleaning of buildings and other structures comp 7470

45212212 and DA03 45450000

455 Rental of construction or dismantling equip-ment with operators

45500000

4550 Rental of construction or dismantling equip-ment with operators

This four-digit level excludes the following - rental of construction or dismantling machines and equipment without operators comp 7132

45500000

37

An appeal may not be lodged before the Market Court against an award decision or other deci-

sion of the contracting authorityentity which concerns only the preparation of the contracting

procedure An appeal may not be lodged against a decision or other measure taken by the

supplier selected as a contracting party concerning a subcontracting agreement or an award

decision or determination made by the contracting authorityentity during the implementation of the contract

A contract based on a framework agreement referred to in Section 27 above and a contract

referred to in Section 68(2) may not be appealed unless a processing authorisation is issued by the Market Court The authorisation shall be issued if

1) the processing of the case is important in terms of applying the Act in other similar matters

or

2) there is a cogent reason for it related to the procedures of the contracting authorityentity

Section 89

Time period for appeal

Unless otherwise prescribed in this Section an appeal must be lodged in writing within 14 days

from the date when the candidate or tenderer received the notice concerning the contract with the instructions for appeal

If the contracting authorityentity has concluded a public contract after the contract decision

was issued on the basis of Section 80 point 1 without complying with the standstill period

the appeal shall be lodged within 30 days from the date when the tenderer has received notice

of the decision with the instructions for appeal

An appeal before the Market Court shall be lodged within six months of the date of the contract

decision provided that the candidate or tenderer has received notice of the contract decision

and the contract decision or appeal instructions were materially deficient or the appeal instruc-tions have been missing altogether

If the contracting authorityentity has with regard to a contract above the EU threshold re-

ferred to in Section 12 above delivered a notice regarding a direct award of contract for publi-

cation in the Official journal of the European Union the complaint must be lodged within 14 days from the publication of the notice

If the notice referred to in subsection 4 has not been published the appeal concerning a direct award of contract shall be lodged

1) within 30 days of the date of publication of a contract-award notice has been published in

the Official Journal of the European Union or

2) within six months from the conclusion of the contract at the latest

Section 90

Notification of appeal to the contracting authorityentity and the list of procurement

cases

The appellant in a contract-related matter must notify the contracting authorityentity in writ-ing of referring the case to the Market Court for consideration

The notification must be delivered to the contracting authorityentity at the latest when the

complaint concerning the contract is delivered to the Market Court The notification shall be delivered to the address provided by the contracting authorityentity

38

The Market Court shall maintain and publish a list which is as comprehensive and up-to-date

as possible of contract-related matters pending at the Market Court

Section 91

The contracting authorityentity as the opponent and compensation of legal costs

In the proceedings regarding contract-related matters the contracting authorityentity shall be considered the opponent of the party or agency lodging the appeal

The provisions of Section 74 subsections 1 and 2 of the Administrative Judicial Procedure Act shall apply to the compensation of legal costs regarding contract-related matters

The provisions of Section 74 subsections 1 and 2 of the administrative Judicial Procedure Act

concerning public authorities or other public parties shall apply to the decision concerning the

liability to provide compensation for the legal costs of the opponent If one contracting authori-

tyentity has been responsible for the contracting procedure on behalf of the other contracting

authorities the obligation regarding compensation of legal costs may be placed on the con-

tracting authorityentity which acted on behalf of the other contracting authorities

Section 92

The effect of the appeal on concluding the contract

In case of a contract where the standstill period or the time limit referred to in section 81 must

be observed the contracting authorityentity may not conclude the contract if the matter has

been brought up for consideration by the Market Court

If the Market Court decides a case concerning enforcement or decides on the principal claim

before the standstill period or the time limit referred to in Section 81 has expired the contract-

ing authorityentity shall observe the standstill period or the time limit referred to in Section

81 until the end of the period notwithstanding the ruling of the Market Court

Section 93

Interim decisions of the Market Court

While the appeal is under consideration the Market Court may prohibit suspend or allow the

implementation of the decision concerning the contract award or order the contracting proce-

dure to be suspended otherwise as an interim measure for the duration of the proceedings in the Market Court

When deciding on the measure referred to in subsection 1 the Market Court shall take into

consideration that the harm caused by the measure to the opponent the rights of third par-

ties the security of the state or the public interest may not outweigh its benefits

However the decision prescribed in subsection 1 of this Section cannot be carried out in the case of a contract referred to in Section 68(2) of this Act

A legally trained member of the Market Court may alone issue a ruling as an interim measure

Section 94

Interim commitment of the contracting authorityentity

While the appeal is under consideration the contracting authorityentity may provide a written

undertaking to the Market Court stating that it will not enforce the decision concerning the contract for as long as the matter is pending in the Market Court

39

If the contracting authorityentity provides the Market Court with the undertaking referred to

in subsection 1 the Market Court will not issue without a specific reason a decision on the

obligation to interim prohibition on implementing the decision to award the contract

Section 95

Temporary organisation of a contract

If an appeal has been lodged against a contract before the Market Court the contracting au-

thorityentity may temporarily organise the contract by ordering it from a supplier who partici-

pated in the contracting procedure or from a previous supplier if the nature of the contract is

such that executing the contract cannot be postponed for the duration of the Market Court pro-ceedings

Temporary contract arrangements must not hinder the execution of the following items by means of a decision of the Market Court

1) the decision of the contracting authorityentity to cancel the contract in full or in part

2) prohibit the contracting authorityentity from applying any erroneous item included in the contract document or otherwise complying with an incorrect procedure or

3) require the contracting authorityentity to rectify its incorrect procedure

Section 96

Sanctions imposed by the Market Court

If during the contract procedure actions have been taken which are against this Act or the provisions based thereon or against European Union legislation the Market Court may

1) cancel the decision of the contracting authorityentity in full or in part

2) prohibit the contracting authorityentity from applying any erroneous item included in the contract document or otherwise complying with an incorrect procedure

3) require the contracting authorityentity to correct its erroneous procedure

4) order the contracting authorityentity to pay a compensatory fee to the party which would

have had a genuine chance to win the bidding competition had the procedure been correct

5) impose an ineffectiveness sanction on the contracting authorityentity

6) order the contracting authorityentity to pay an infringement fine to the state

7) reduce the contract term to end after a period of time specified by the Market Court has

passed

The provisions of Sections 97ndash100 shall apply to determining the sanctions mentioned in sub-

section 1 points 4ndash7 above When determining these sanctions the Market Court may consid-

er the contract to have been concluded on the basis of specific circumstances provided that

the contracting authorityentity has especially commenced the implementation of the contract

The ineffectiveness sanctions infringement fine and reduction of contract terms may only be

issued in contracts exceeding the EU thresholds referred to in Section 12 However an ineffec-tiveness sanction cannot be imposed in a service contract in accordance with Annex B

Only a compensatory fee can be imposed in a contract referred to in Section 68(2) of this Act

40

Section 97

Compensation

Provision for compensation may be made if the harm caused to the contracting authori-

tyentity rights of third parties state security and the public interest by the measure defined

in Section 96(1)(1ndash3) is considered to outweigh the benefits or if the petition has been initiat-

ed following the conclusion of the contract With respect to setting the amount of the compen-

satory fee account shall be taken of the nature of the infringement or omission by the con-

tracting authorityentity the value of the contract in question and the costs and damages in-

curred by the petitioner The Market Court may however decide not to prove for compensa-

tion if the contracting authorityentity has refrained from implementing the contract during the proceedings in the Market Court

Without a specific reason the amount of compensation shall not exceed 10 percent of the val-

ue of the contract

Section 98

Ineffectiveness

The Market Court may declare a contract ineffective if

1) the contracting authorityentity has made a direct award of contract without the basis re-ferred to in this Act and the procedures referred to in Section 81

2) the contracting authorityentity has concluded the contract although there is an obligation in the contract to observe a standstill period

3) the contracting authorityentity has concluded the contract contrary to Section 92 although

the procurement case has been submitted to the Market Court for a decision

In addition a requirement in the situation referred to in subsection 1 points 2 and 3 above is

that the contracting authorityentity has made another infringement contrary to this Act which has affected the chances of the appellant to win the contract

If the contracting authorityentity has concluded the contract in a competition based on the

framework agreement on the basis of Section 80 without observing the standstill period and if

a breach has been committed in the competition in respect of Section 27(2 or 3) such that this

has affected the chances of the appellant to win the contract the Market Court may declare the contract ineffective

The Market Court shall decide to which contractual obligations ineffectiveness shall apply Inef-

fectiveness shall apply only to unfulfilled contractual obligations

Section 99

Non-imposition of ineffectiveness

In the situations referred to in Section 98 above the Market Court may decide not to impose

ineffectiveness for compelling reasons related to the public interest or state security Economic

interests which are directly related to the contract may be deemed compelling only if ineffec-tiveness of the contract would exceptionally have inequitable consequences

The Market Court may not impose ineffectiveness if it would result in serious endangerment of

the implementation of a defence and security project essentially important with respect to

state security

Section 100

41

Infringement fines and reduction of the contract term

The Market Court may order a contracting authorityentity to pay the state an infringement

fine if

1) the Market Court has declared the contract ineffective

2) the contracting authorityentity has concluded the contract although there is an obligation in the contract to observe a standstill period

3) the contracting authorityentity has concluded the contract contrary to Section 92 although the procurement case has been submitted to the Market Court for a decision or

4) the Market Court has decided not to declare the contract ineffective for compelling reasons related to the public interest or state security in accordance with Section 99

In the situation referred to in subsection 1 point 4 above the Market Court may in addition to

or instead of imposing a sanction reduce the contract term so that it ends after a period of time specified by the Court

The Market Court may order a contracting authorityentity to pay the state an infringement

fine or reduce the contract term so that it ends after a period of time specified by the Court

this applies to service contracts referred to in Annex B of this Act the value of which exceeds

the EU threshold as defined in Section 12 if the contracting authorityentity

1) has made a direct award of contract without the basis referred to in this Act and the proce-dures referred to in Section 81 not having been complied with in the direct award

2) has concluded the contract although there is an obligation in the contract to observe the standstill period

3) has concluded the contract contrary to Section 92 although the procurement case has been submitted to the Market Court for a decision or

4) has concluded the contract in a competition based on a framework agreement on the basis

of Section 80 without observing the standstill period and if a breach has been committed in the

competition in respect of Section 27(2 or 3) such that this has affected the chances of the ap-pellant to win the contract

In addition a requirement in the situation referred to in subsection 3 points 2 and 3 above is

that the contracting authorityentity has made another infringement contrary to this Act which

has affected the chances of the appellant to win the contract

With respect to issuing a sanction the Market Court shall take into account the nature of the

mistake or omission by the contracting authorityentity and the value of the contract in ques-

tion The sanction shall not exceed 10 percent of the value of the contract

Section 101

Allocation of sanctions and cumulative effect

If one contracting authorityentity has been responsible for the contracting procedure on be-

half of the other contracting authorities the obligation to compensate for legal costs can be

placed on the contracting authorityentity that acted on behalf of the other contracting authori-

ties

With respect to the sanctions referred to in this Act the Market Court shall take into considera-

tion that the cumulative effect may not become unreasonable for the contracting authori-

tyentity or its contracting party

42

Section 102

Conditional fine

The Market Court may impose a conditional fine in order to underline the importance of com-

plying with the prohibitions or obligations referred to in this Act The provisions of the Act on

Conditional Fines (11131990) shall apply to the imposing of and sentencing to the payment of

conditional fines

If one contracting authorityentity has been responsible for the contracting procedure on be-

half of the other contracting authorities the obligation to compensate for costs can be placed

on the contracting authorityentity that acted on behalf of the other contracting authorities

Section 103

Notification of the Market Courts ruling

The ruling of the Market Court along with the instructions for appeal shall be verifiably notified under the provisions of the Administrative Judicial Procedure Act

With the consent of the appellant and the contracting authorityentity the Market Courts deci-

sion together with the instructions for appeal may be publicised using the electronic contact

information the aforementioned parties have provided to the Market Court

When electronic contact information is used the appellant and the contracting authorityentity

shall be deemed to have been notified of the decision and instructions for appeal on the date

on which the message concerning the matter is available in the recipientsrsquo reception equipment

so that the message can be handled The provisions of Section 77(1) shall apply to electronic

notification

Section 104

Prohibition to appeal

A case that is within the jurisdiction of the Market Court cannot be appealed against under the

provisions of the Local Government Act or the Administrative Judicial Procedure Act

A decision or ruling concerning a contract which has been excluded from the scope of applica-

tion of this Act on the basis of Section 6(2) and Sections 78 or 13 may not be appealed under

the Administrative Judicial Procedure Act or the Local Government Act The subcontractor may

not under the Administrative Judicial Procedure Act or the Local Government Act appeal the

decision or action taken by the contracting authorityentity concerning the subcontract

Section 105

Appeals against the decisions of the Market Court

Appeals against a ruling of the Market Court can be lodged in the Supreme Administrative Court in accordance with the Administrative Judicial Procedure Act

As referred to in Section 93(1) an appeal cannot be lodged against the ruling by the Market

Court in the Supreme Administrative Court A ruling by the Market Court does not prevent the

case from being reconsidered by the Market Court if the grounds for the previous ruling have

changed

If the Market Court has ruled that it will not grant the processing authorisation referred to in

Section 88(3) then an appeal against this ruling can only be lodged if the Supreme Adminis-

trative Court grants a leave to appeal

43

Section 106

Application of the Administrative Judicial Procedure Act

The Administrative Judicial Procedure Act shall apply to appeals unless otherwise provided by this Act

Section 107

Implementation of rulings

A ruling of the Market Court has to be observed notwithstanding any appeal unless the Su-

preme Administrative Court orders otherwise The ruling of the Market Court issuing the sanc-

tion referred to in Section 96(1)(4ndash7) may only be implemented on the basis of a final ruling

The implementation of a ruling concerning a sanction shall be supervised by the Legal Register

Centre The Legal Register Centre must be informed of any ruling by the Market Court and

Supreme Administrative Court to issue a sanction

Section 108

Compensation for damages

Those who cause damage to a candidate tenderer or supplier shall be liable to pay compensa-

tion for the damage they have caused while acting in breach of this Act or any regulations based thereon or the European Union law

However when the claim for damages refers to costs incurred as a result of the tendering pro-

cedure the candidate or tenderer is entitled to compensation if it can provide proof of the in-

correct procedure as defined in subsection 1 and that had the procedure been correct it would have had a genuine chance to win the contract

In respect of the cases defined in subsection 1 and 2 a Court of first instance shall be the

competent court in accordance with Chapter 10 of the Code of Judicial Procedure

Chapter 16

Further provisions

Section 109

Disclosure of information

Notwithstanding the provisions concerning confidentiality provided for in the Act on the Open-

ness of Government Activities or in any other act the contracting authorityentity shall supply

statistics and other information concerning the different stages of the contract and performed

contracts to the Finnish authorities and European Union bodies to monitor contracts and ex-

change information on the scale and to the time limit required by European Union law Pursu-

ant to this Act the Ministry of Economic Affairs and Employment has the right to forward in-

formation it has received to the European Union authorities notwithstanding the regulations on confidentiality

The contracting authorityentity shall draw up a written report on each contract and framework

agreement which includes essential information on the contract contract procedure and the

candidates and tenderers who participated as well as on the decisions made in connection with

44

the contract The report and its main content shall be forwarded on request to the European

Commission A separate report is not required if corresponding information can be found in the

contract decision or other documents

To document the course of the realised contract procedure the contracting authorityentity

shall implement necessary measures in an electronic format

More specific rules are laid down in a Government decree on the obligation to provide statistics

and the responsibility of the contracting authorityentity to draw up reports on contract proce-

dures and contract decisions as referred to in subsection 1 which are to be forwarded to the

European Union bodies

Section 110

Entry into force and transitional provisions

This Act enters into force on 1 January 2012

If a contract procedure is started before the entry into force of this Act the provisions that

were in force at the time when this Act entered into force shall be applied The contract proce-

dure shall be deemed to have commenced when the contract notice was published A contract

which does not require the publication of the contract notice shall be deemed to have com-

menced when the invitation to tender or a meeting is sent or negotiations with suppliers begin

Measures necessary for the implementation of this Act may be undertaken before the Actrsquos

entry into force

45

ANNEX A

Primary services

Group No

Matter CPV Reference No

1 Maintenance and repair services 50000000-5 50100000-6-50884000-4 (except 50310000-1-50324200-4 and 50116510-9 50190000-3 50229000-6 50243000-0) and 51000000-9-51900000-1

2 Services related to international military assistance

75211300-1

3 Defence services military defence services and civil defence services

75220000-4 75221000-1 75222000-8

4 Investigation and security services 79700000-1-79720000-7

5 Land transport services 60000000-8 60100000-9-60183000-4 (except 60160000-7 60161000-4) and 64120000-3-64121200-2

6 Air transport services for passengers and freight except transport of mail

60400000-2 60410000-5-60424120-3 (except 60411000-2 60421000-5) 60440000-4-60445000-9 and 60500000-3

7 Transport of mail by land and by air 60160000-7 60161000-4 60411000-2 60421000-5

8 Railway transport services 60200000-0-60220000-6

9 Sea transport services 60600000-4-60653000-0 and 63727000-1-63727200-3

10 Support and auxiliary transport services 63100000-0-63111000-0 63120000-6-63121100-4 63122000-0 63512000-1 and 63520000-0-6370000-6

11 Telecommunications services 64200000-8-64228200-2 72318000-7 and 72700000-7-72720000-3

12 Financial services insurance services 66500000-5-66720000-3

13 Data-processing and related services 50310000-1-50324200-4 72000000-5-72920000-5 (except 72318000-7 and 72700000-7-72720000-3) 79342410-4 9342410-4

14 Research and development services(sup1) and evaluation tests

73000000-2-73436000-7

15 Accounting auditing and bookkeeping services

79210000-9-79212500-8

16 Management consulting(sup2) and related services

73200000-4-73220000-0 79400000-8-79421200-3 and 79342000-3 79342100-4 79342300-6 79342320-2 79342321-9 79910000-6 79991000-7 98362000-8

17 Architectural services engineering services and integrated engineering services urban planning and landscape architectural services related scientific and technical consulting services technical testing and analysis services

71000000-8-71900000-7(except 71550000-8) and 79994000-8

18 Building cleaning services and building and property management services

70300000-4-70340000-0 and 90900000-6-90924000-3

19 Sewage and refuse disposal services 90400000-1 to 90743200-9 (except 90712200-3)

46

sanitation and similar services 90910000-9-90920000-2 and 50190000-3 50229000-6 50243000-0

20 Training and simulation services in the fields of defence and security

80330000-6 80600000-0 80610000-3 80620000-6 80630000-9 80640000-2 80650000-5 80660000-8

(sup1) Except the research and development services referred to in Section 13(2)(5) (sup2) Except arbitration and conciliation services ANNEX B Secondary services

Group No

Matter CPV Reference No

21 Hotel and restaurant services 55100000-1-55524000-9 and 98340000-8-98341100-6

22 Support and auxiliary transport services 63000000-9-63734000-3 (except 63711200-8 63712700-0 63712710-3) 6372700-1-63727200-3 and 98361000-1

23 Legal services 79100000-5-79140000-7

24 Employment and personnel recruitment services(sup1)

79600000-0-79635000-4 (except 79611000-0 79632000-3 79633000-0) and 98500000-8-98514000-9

25 Health and social services 79611000-085000000-9 and -85323000-9 (except 85321000-5 and 85322000-2)

26 Other services

(sup1) Except employment contracts

47

ANNEX C NACEsup1ordm

Main category F CONSTRUCTION CPV code

2-digit level

3-digit level

4-digit level

Description Comments

45 Construction This two-digit level includes the following construction of new buildings and works reconstruction and common repairs

45000000

451 Site preparation

45100000

4511 Demolition and wreck-ing of buildings earth moving

This four-digit level includes the following - demolition of buildings and other structures - clearing of building sites and earth moving site excavation landfill and levelling trench dig-ging quarrying blasting etc - site preparation for mining

- overburden removal and other development and prepa-ration of mines and mining sites

This four-digit level also includes - building site underdrainage - drainage of agricultural or forestry land

45110000

4512 Test drilling This four-digit level includes the following - test drilling test boring and sampling for construction geophysical geological or similar purposes This four-digit level excludes the following - drilling of oil or gas wells comp 1120 - water well drilling 4525

45120000

sup1deg Council regulation (EEC) No 303790 (Official Journal of the European Union 293 24 October 1990 p 1) on the statistical classification of economic activities in the European Community issued on 9 October 1990 regulation as amended by Commission Regulation (EEC) No 76193 (Official Journal of the European Union L 83 3 April 1993 p 1) If there are differences of opinion between CPV and NACE NACE nomenclature shall apply

48

- shaft sinking comp 4525 - oil and gas field exploration geophysical geological and seismic surveying comp 7420

452 Building complete constructions or parts thereof

45200000

4521 Building work This four-digit level includes the following - Construction of all types of buildings - civil engineering and hydraulic engineering works - building of bridges including those for elevated highways metro tunnels - construction of long-distance pipelines communication cables and long-distance networks for power lines - construction of long-distance pipelines telecommunication ca-bles and municipal network power lines related installation work - on-site assembly and erection of pre-fabricated constructions This four-digit level excludes the following - services related to oil and gas extraction comp 1120 - erection of complete prefabricat-ed constructions from self-manufactured parts not of con-crete comp 20 26 28 - construction work other than buildings for stadiums swimming pools gymnasiums tennis courts golf courses and other sports installations comp 4523 building installation comp 453 - building completion comp 454 - architectural and engineering services comp 7420 - project management for construction comp 7420

45210000 Except 45213316 45220000 45231000 45232000

4522 Erection and covering of roofs

This four-digit level includes the following - erection of roofs - roof covering - waterproofing

45261000

49

4523 Construction of highways streets airports and sports equipment

This four-digit level includes the following - construction of highways streets other vehicular and pedestrian ways - construction of railways - construction of airfield runways - construction work other than build-ings for stadiums swimming pools gymnasiums tennis courts golf courses and other sports installations - painting of markings on road surfaces and car parks This four-digit level excludes the following - preliminary earth moving comp 4511

45212212 and DA03 45230000 except 45231000 45232000 45234115

4524 Construction of water projects

This four-digit level includes the following building works - construction of waterways harbour and river works marinas locks etc - construction of dams and breakwaters - dredging - subsurface work

45240000

4525 Other construction work

This four-digit level includes the following - construction activities specialising in one aspect common to different kinds of structures requiring specialised skill or equipment - construction of foundations including pile driving - water well drilling and construction shaft sinking - erection of non-self-manufactured steel frame elements - steel bending - bricklaying and stone setting - erecting and dismantling of scaffolds and work platforms including rental of scaffolds and work platforms - erection of chimneys and industrial ovens This four-digit level excludes the following - rental of scaffolds without erecting and dismantling comp 7132

45250000 45262000

453 Building installation 45300000

4531 Installation of electri-cal wiring and fittings

This four-digit level includes the installation in buildings or other

45213316 45310000

50

construction projects of - electrical wiring and fittings - telecommunications systems - electrical heating systems - residential antennas - fire alarms - burglar alarm systems - lifts and escalators - lightning conductors etc

Except 45316000

4532 Insulation work This four-digit level includes the following - installation in buildings or other construction projects of thermal sound or vibration insulation This four-digit level excludes the following - waterproofing comp 4522

45320000

4533 Plumbing This four-digit level includes the installation in buildings or other construction projects of the following - plumbing and sanitary equipment and fittings - gas fittings - heating ventilation refrigeration or air-conditioning equipment and ducts - sprinkler systems This four-digit level excludes the following - installation of electrical heating systems comp 4531

45330000

4534 Other installation work

This four-digit level includes the fol-lowing - installation or other construction of illumination and signalling systems for roads railways airports and harbours - installation in buildings or other construction projects of fittings and fixtures

45234115 45316000 45340000

454 Building completion 45400000

4541 Plastering This four-digit level includes the following - application in building or other construction projects of interior and exterior plaster or stucco and other similar lathing materials

45410000

4542 Joinery installation This four-digit level includes the following - installation of non-self-manufactured doors windows door

45420000

51

and window frames fitted kitchens staircases and shop fittings made of wood or other materials - completion of interiors such as ceilings wooden wall coverings wall paneling installation of movable partitions etc This four-digit level excludes the following - laying of parquet and other wooden floor coverings comp 4543

52

4543 Floor covering and wall upholstery

This four-digit level includes the following - covering or tiling of buildings or other structures using - ceramic concrete or stone wall or floor tiles or stones - parquet or other wooden floor covering - wall-to-wall carpeting or linoleum also rubber or plastic floor covering - wall or floor covering made of mosaic marble granite or slate - wallpaper

45430000

4544 Painting and glazing This four-digit level includes the following - interior and exterior painting of buildings - exterior painting of other structures - installation of mirrors glass etc This four-digit level excludes the following - installation of windows comp 4542

45440000

4545 Other building completion

This four-digit level includes the following - construction of private swimming pools - cleaning the exterior surfaces of buildings using steam sandblasting or other similar method - other building completion work not classified elsewhere This four-digit level excludes the following - cleaning of buildings and other structures comp 7470

45212212 and DA03 45450000

455 Rental of construction or dismantling equip-ment with operators

45500000

4550 Rental of construction or dismantling equip-ment with operators

This four-digit level excludes the following - rental of construction or dismantling machines and equipment without operators comp 7132

45500000

38

The Market Court shall maintain and publish a list which is as comprehensive and up-to-date

as possible of contract-related matters pending at the Market Court

Section 91

The contracting authorityentity as the opponent and compensation of legal costs

In the proceedings regarding contract-related matters the contracting authorityentity shall be considered the opponent of the party or agency lodging the appeal

The provisions of Section 74 subsections 1 and 2 of the Administrative Judicial Procedure Act shall apply to the compensation of legal costs regarding contract-related matters

The provisions of Section 74 subsections 1 and 2 of the administrative Judicial Procedure Act

concerning public authorities or other public parties shall apply to the decision concerning the

liability to provide compensation for the legal costs of the opponent If one contracting authori-

tyentity has been responsible for the contracting procedure on behalf of the other contracting

authorities the obligation regarding compensation of legal costs may be placed on the con-

tracting authorityentity which acted on behalf of the other contracting authorities

Section 92

The effect of the appeal on concluding the contract

In case of a contract where the standstill period or the time limit referred to in section 81 must

be observed the contracting authorityentity may not conclude the contract if the matter has

been brought up for consideration by the Market Court

If the Market Court decides a case concerning enforcement or decides on the principal claim

before the standstill period or the time limit referred to in Section 81 has expired the contract-

ing authorityentity shall observe the standstill period or the time limit referred to in Section

81 until the end of the period notwithstanding the ruling of the Market Court

Section 93

Interim decisions of the Market Court

While the appeal is under consideration the Market Court may prohibit suspend or allow the

implementation of the decision concerning the contract award or order the contracting proce-

dure to be suspended otherwise as an interim measure for the duration of the proceedings in the Market Court

When deciding on the measure referred to in subsection 1 the Market Court shall take into

consideration that the harm caused by the measure to the opponent the rights of third par-

ties the security of the state or the public interest may not outweigh its benefits

However the decision prescribed in subsection 1 of this Section cannot be carried out in the case of a contract referred to in Section 68(2) of this Act

A legally trained member of the Market Court may alone issue a ruling as an interim measure

Section 94

Interim commitment of the contracting authorityentity

While the appeal is under consideration the contracting authorityentity may provide a written

undertaking to the Market Court stating that it will not enforce the decision concerning the contract for as long as the matter is pending in the Market Court

39

If the contracting authorityentity provides the Market Court with the undertaking referred to

in subsection 1 the Market Court will not issue without a specific reason a decision on the

obligation to interim prohibition on implementing the decision to award the contract

Section 95

Temporary organisation of a contract

If an appeal has been lodged against a contract before the Market Court the contracting au-

thorityentity may temporarily organise the contract by ordering it from a supplier who partici-

pated in the contracting procedure or from a previous supplier if the nature of the contract is

such that executing the contract cannot be postponed for the duration of the Market Court pro-ceedings

Temporary contract arrangements must not hinder the execution of the following items by means of a decision of the Market Court

1) the decision of the contracting authorityentity to cancel the contract in full or in part

2) prohibit the contracting authorityentity from applying any erroneous item included in the contract document or otherwise complying with an incorrect procedure or

3) require the contracting authorityentity to rectify its incorrect procedure

Section 96

Sanctions imposed by the Market Court

If during the contract procedure actions have been taken which are against this Act or the provisions based thereon or against European Union legislation the Market Court may

1) cancel the decision of the contracting authorityentity in full or in part

2) prohibit the contracting authorityentity from applying any erroneous item included in the contract document or otherwise complying with an incorrect procedure

3) require the contracting authorityentity to correct its erroneous procedure

4) order the contracting authorityentity to pay a compensatory fee to the party which would

have had a genuine chance to win the bidding competition had the procedure been correct

5) impose an ineffectiveness sanction on the contracting authorityentity

6) order the contracting authorityentity to pay an infringement fine to the state

7) reduce the contract term to end after a period of time specified by the Market Court has

passed

The provisions of Sections 97ndash100 shall apply to determining the sanctions mentioned in sub-

section 1 points 4ndash7 above When determining these sanctions the Market Court may consid-

er the contract to have been concluded on the basis of specific circumstances provided that

the contracting authorityentity has especially commenced the implementation of the contract

The ineffectiveness sanctions infringement fine and reduction of contract terms may only be

issued in contracts exceeding the EU thresholds referred to in Section 12 However an ineffec-tiveness sanction cannot be imposed in a service contract in accordance with Annex B

Only a compensatory fee can be imposed in a contract referred to in Section 68(2) of this Act

40

Section 97

Compensation

Provision for compensation may be made if the harm caused to the contracting authori-

tyentity rights of third parties state security and the public interest by the measure defined

in Section 96(1)(1ndash3) is considered to outweigh the benefits or if the petition has been initiat-

ed following the conclusion of the contract With respect to setting the amount of the compen-

satory fee account shall be taken of the nature of the infringement or omission by the con-

tracting authorityentity the value of the contract in question and the costs and damages in-

curred by the petitioner The Market Court may however decide not to prove for compensa-

tion if the contracting authorityentity has refrained from implementing the contract during the proceedings in the Market Court

Without a specific reason the amount of compensation shall not exceed 10 percent of the val-

ue of the contract

Section 98

Ineffectiveness

The Market Court may declare a contract ineffective if

1) the contracting authorityentity has made a direct award of contract without the basis re-ferred to in this Act and the procedures referred to in Section 81

2) the contracting authorityentity has concluded the contract although there is an obligation in the contract to observe a standstill period

3) the contracting authorityentity has concluded the contract contrary to Section 92 although

the procurement case has been submitted to the Market Court for a decision

In addition a requirement in the situation referred to in subsection 1 points 2 and 3 above is

that the contracting authorityentity has made another infringement contrary to this Act which has affected the chances of the appellant to win the contract

If the contracting authorityentity has concluded the contract in a competition based on the

framework agreement on the basis of Section 80 without observing the standstill period and if

a breach has been committed in the competition in respect of Section 27(2 or 3) such that this

has affected the chances of the appellant to win the contract the Market Court may declare the contract ineffective

The Market Court shall decide to which contractual obligations ineffectiveness shall apply Inef-

fectiveness shall apply only to unfulfilled contractual obligations

Section 99

Non-imposition of ineffectiveness

In the situations referred to in Section 98 above the Market Court may decide not to impose

ineffectiveness for compelling reasons related to the public interest or state security Economic

interests which are directly related to the contract may be deemed compelling only if ineffec-tiveness of the contract would exceptionally have inequitable consequences

The Market Court may not impose ineffectiveness if it would result in serious endangerment of

the implementation of a defence and security project essentially important with respect to

state security

Section 100

41

Infringement fines and reduction of the contract term

The Market Court may order a contracting authorityentity to pay the state an infringement

fine if

1) the Market Court has declared the contract ineffective

2) the contracting authorityentity has concluded the contract although there is an obligation in the contract to observe a standstill period

3) the contracting authorityentity has concluded the contract contrary to Section 92 although the procurement case has been submitted to the Market Court for a decision or

4) the Market Court has decided not to declare the contract ineffective for compelling reasons related to the public interest or state security in accordance with Section 99

In the situation referred to in subsection 1 point 4 above the Market Court may in addition to

or instead of imposing a sanction reduce the contract term so that it ends after a period of time specified by the Court

The Market Court may order a contracting authorityentity to pay the state an infringement

fine or reduce the contract term so that it ends after a period of time specified by the Court

this applies to service contracts referred to in Annex B of this Act the value of which exceeds

the EU threshold as defined in Section 12 if the contracting authorityentity

1) has made a direct award of contract without the basis referred to in this Act and the proce-dures referred to in Section 81 not having been complied with in the direct award

2) has concluded the contract although there is an obligation in the contract to observe the standstill period

3) has concluded the contract contrary to Section 92 although the procurement case has been submitted to the Market Court for a decision or

4) has concluded the contract in a competition based on a framework agreement on the basis

of Section 80 without observing the standstill period and if a breach has been committed in the

competition in respect of Section 27(2 or 3) such that this has affected the chances of the ap-pellant to win the contract

In addition a requirement in the situation referred to in subsection 3 points 2 and 3 above is

that the contracting authorityentity has made another infringement contrary to this Act which

has affected the chances of the appellant to win the contract

With respect to issuing a sanction the Market Court shall take into account the nature of the

mistake or omission by the contracting authorityentity and the value of the contract in ques-

tion The sanction shall not exceed 10 percent of the value of the contract

Section 101

Allocation of sanctions and cumulative effect

If one contracting authorityentity has been responsible for the contracting procedure on be-

half of the other contracting authorities the obligation to compensate for legal costs can be

placed on the contracting authorityentity that acted on behalf of the other contracting authori-

ties

With respect to the sanctions referred to in this Act the Market Court shall take into considera-

tion that the cumulative effect may not become unreasonable for the contracting authori-

tyentity or its contracting party

42

Section 102

Conditional fine

The Market Court may impose a conditional fine in order to underline the importance of com-

plying with the prohibitions or obligations referred to in this Act The provisions of the Act on

Conditional Fines (11131990) shall apply to the imposing of and sentencing to the payment of

conditional fines

If one contracting authorityentity has been responsible for the contracting procedure on be-

half of the other contracting authorities the obligation to compensate for costs can be placed

on the contracting authorityentity that acted on behalf of the other contracting authorities

Section 103

Notification of the Market Courts ruling

The ruling of the Market Court along with the instructions for appeal shall be verifiably notified under the provisions of the Administrative Judicial Procedure Act

With the consent of the appellant and the contracting authorityentity the Market Courts deci-

sion together with the instructions for appeal may be publicised using the electronic contact

information the aforementioned parties have provided to the Market Court

When electronic contact information is used the appellant and the contracting authorityentity

shall be deemed to have been notified of the decision and instructions for appeal on the date

on which the message concerning the matter is available in the recipientsrsquo reception equipment

so that the message can be handled The provisions of Section 77(1) shall apply to electronic

notification

Section 104

Prohibition to appeal

A case that is within the jurisdiction of the Market Court cannot be appealed against under the

provisions of the Local Government Act or the Administrative Judicial Procedure Act

A decision or ruling concerning a contract which has been excluded from the scope of applica-

tion of this Act on the basis of Section 6(2) and Sections 78 or 13 may not be appealed under

the Administrative Judicial Procedure Act or the Local Government Act The subcontractor may

not under the Administrative Judicial Procedure Act or the Local Government Act appeal the

decision or action taken by the contracting authorityentity concerning the subcontract

Section 105

Appeals against the decisions of the Market Court

Appeals against a ruling of the Market Court can be lodged in the Supreme Administrative Court in accordance with the Administrative Judicial Procedure Act

As referred to in Section 93(1) an appeal cannot be lodged against the ruling by the Market

Court in the Supreme Administrative Court A ruling by the Market Court does not prevent the

case from being reconsidered by the Market Court if the grounds for the previous ruling have

changed

If the Market Court has ruled that it will not grant the processing authorisation referred to in

Section 88(3) then an appeal against this ruling can only be lodged if the Supreme Adminis-

trative Court grants a leave to appeal

43

Section 106

Application of the Administrative Judicial Procedure Act

The Administrative Judicial Procedure Act shall apply to appeals unless otherwise provided by this Act

Section 107

Implementation of rulings

A ruling of the Market Court has to be observed notwithstanding any appeal unless the Su-

preme Administrative Court orders otherwise The ruling of the Market Court issuing the sanc-

tion referred to in Section 96(1)(4ndash7) may only be implemented on the basis of a final ruling

The implementation of a ruling concerning a sanction shall be supervised by the Legal Register

Centre The Legal Register Centre must be informed of any ruling by the Market Court and

Supreme Administrative Court to issue a sanction

Section 108

Compensation for damages

Those who cause damage to a candidate tenderer or supplier shall be liable to pay compensa-

tion for the damage they have caused while acting in breach of this Act or any regulations based thereon or the European Union law

However when the claim for damages refers to costs incurred as a result of the tendering pro-

cedure the candidate or tenderer is entitled to compensation if it can provide proof of the in-

correct procedure as defined in subsection 1 and that had the procedure been correct it would have had a genuine chance to win the contract

In respect of the cases defined in subsection 1 and 2 a Court of first instance shall be the

competent court in accordance with Chapter 10 of the Code of Judicial Procedure

Chapter 16

Further provisions

Section 109

Disclosure of information

Notwithstanding the provisions concerning confidentiality provided for in the Act on the Open-

ness of Government Activities or in any other act the contracting authorityentity shall supply

statistics and other information concerning the different stages of the contract and performed

contracts to the Finnish authorities and European Union bodies to monitor contracts and ex-

change information on the scale and to the time limit required by European Union law Pursu-

ant to this Act the Ministry of Economic Affairs and Employment has the right to forward in-

formation it has received to the European Union authorities notwithstanding the regulations on confidentiality

The contracting authorityentity shall draw up a written report on each contract and framework

agreement which includes essential information on the contract contract procedure and the

candidates and tenderers who participated as well as on the decisions made in connection with

44

the contract The report and its main content shall be forwarded on request to the European

Commission A separate report is not required if corresponding information can be found in the

contract decision or other documents

To document the course of the realised contract procedure the contracting authorityentity

shall implement necessary measures in an electronic format

More specific rules are laid down in a Government decree on the obligation to provide statistics

and the responsibility of the contracting authorityentity to draw up reports on contract proce-

dures and contract decisions as referred to in subsection 1 which are to be forwarded to the

European Union bodies

Section 110

Entry into force and transitional provisions

This Act enters into force on 1 January 2012

If a contract procedure is started before the entry into force of this Act the provisions that

were in force at the time when this Act entered into force shall be applied The contract proce-

dure shall be deemed to have commenced when the contract notice was published A contract

which does not require the publication of the contract notice shall be deemed to have com-

menced when the invitation to tender or a meeting is sent or negotiations with suppliers begin

Measures necessary for the implementation of this Act may be undertaken before the Actrsquos

entry into force

45

ANNEX A

Primary services

Group No

Matter CPV Reference No

1 Maintenance and repair services 50000000-5 50100000-6-50884000-4 (except 50310000-1-50324200-4 and 50116510-9 50190000-3 50229000-6 50243000-0) and 51000000-9-51900000-1

2 Services related to international military assistance

75211300-1

3 Defence services military defence services and civil defence services

75220000-4 75221000-1 75222000-8

4 Investigation and security services 79700000-1-79720000-7

5 Land transport services 60000000-8 60100000-9-60183000-4 (except 60160000-7 60161000-4) and 64120000-3-64121200-2

6 Air transport services for passengers and freight except transport of mail

60400000-2 60410000-5-60424120-3 (except 60411000-2 60421000-5) 60440000-4-60445000-9 and 60500000-3

7 Transport of mail by land and by air 60160000-7 60161000-4 60411000-2 60421000-5

8 Railway transport services 60200000-0-60220000-6

9 Sea transport services 60600000-4-60653000-0 and 63727000-1-63727200-3

10 Support and auxiliary transport services 63100000-0-63111000-0 63120000-6-63121100-4 63122000-0 63512000-1 and 63520000-0-6370000-6

11 Telecommunications services 64200000-8-64228200-2 72318000-7 and 72700000-7-72720000-3

12 Financial services insurance services 66500000-5-66720000-3

13 Data-processing and related services 50310000-1-50324200-4 72000000-5-72920000-5 (except 72318000-7 and 72700000-7-72720000-3) 79342410-4 9342410-4

14 Research and development services(sup1) and evaluation tests

73000000-2-73436000-7

15 Accounting auditing and bookkeeping services

79210000-9-79212500-8

16 Management consulting(sup2) and related services

73200000-4-73220000-0 79400000-8-79421200-3 and 79342000-3 79342100-4 79342300-6 79342320-2 79342321-9 79910000-6 79991000-7 98362000-8

17 Architectural services engineering services and integrated engineering services urban planning and landscape architectural services related scientific and technical consulting services technical testing and analysis services

71000000-8-71900000-7(except 71550000-8) and 79994000-8

18 Building cleaning services and building and property management services

70300000-4-70340000-0 and 90900000-6-90924000-3

19 Sewage and refuse disposal services 90400000-1 to 90743200-9 (except 90712200-3)

46

sanitation and similar services 90910000-9-90920000-2 and 50190000-3 50229000-6 50243000-0

20 Training and simulation services in the fields of defence and security

80330000-6 80600000-0 80610000-3 80620000-6 80630000-9 80640000-2 80650000-5 80660000-8

(sup1) Except the research and development services referred to in Section 13(2)(5) (sup2) Except arbitration and conciliation services ANNEX B Secondary services

Group No

Matter CPV Reference No

21 Hotel and restaurant services 55100000-1-55524000-9 and 98340000-8-98341100-6

22 Support and auxiliary transport services 63000000-9-63734000-3 (except 63711200-8 63712700-0 63712710-3) 6372700-1-63727200-3 and 98361000-1

23 Legal services 79100000-5-79140000-7

24 Employment and personnel recruitment services(sup1)

79600000-0-79635000-4 (except 79611000-0 79632000-3 79633000-0) and 98500000-8-98514000-9

25 Health and social services 79611000-085000000-9 and -85323000-9 (except 85321000-5 and 85322000-2)

26 Other services

(sup1) Except employment contracts

47

ANNEX C NACEsup1ordm

Main category F CONSTRUCTION CPV code

2-digit level

3-digit level

4-digit level

Description Comments

45 Construction This two-digit level includes the following construction of new buildings and works reconstruction and common repairs

45000000

451 Site preparation

45100000

4511 Demolition and wreck-ing of buildings earth moving

This four-digit level includes the following - demolition of buildings and other structures - clearing of building sites and earth moving site excavation landfill and levelling trench dig-ging quarrying blasting etc - site preparation for mining

- overburden removal and other development and prepa-ration of mines and mining sites

This four-digit level also includes - building site underdrainage - drainage of agricultural or forestry land

45110000

4512 Test drilling This four-digit level includes the following - test drilling test boring and sampling for construction geophysical geological or similar purposes This four-digit level excludes the following - drilling of oil or gas wells comp 1120 - water well drilling 4525

45120000

sup1deg Council regulation (EEC) No 303790 (Official Journal of the European Union 293 24 October 1990 p 1) on the statistical classification of economic activities in the European Community issued on 9 October 1990 regulation as amended by Commission Regulation (EEC) No 76193 (Official Journal of the European Union L 83 3 April 1993 p 1) If there are differences of opinion between CPV and NACE NACE nomenclature shall apply

48

- shaft sinking comp 4525 - oil and gas field exploration geophysical geological and seismic surveying comp 7420

452 Building complete constructions or parts thereof

45200000

4521 Building work This four-digit level includes the following - Construction of all types of buildings - civil engineering and hydraulic engineering works - building of bridges including those for elevated highways metro tunnels - construction of long-distance pipelines communication cables and long-distance networks for power lines - construction of long-distance pipelines telecommunication ca-bles and municipal network power lines related installation work - on-site assembly and erection of pre-fabricated constructions This four-digit level excludes the following - services related to oil and gas extraction comp 1120 - erection of complete prefabricat-ed constructions from self-manufactured parts not of con-crete comp 20 26 28 - construction work other than buildings for stadiums swimming pools gymnasiums tennis courts golf courses and other sports installations comp 4523 building installation comp 453 - building completion comp 454 - architectural and engineering services comp 7420 - project management for construction comp 7420

45210000 Except 45213316 45220000 45231000 45232000

4522 Erection and covering of roofs

This four-digit level includes the following - erection of roofs - roof covering - waterproofing

45261000

49

4523 Construction of highways streets airports and sports equipment

This four-digit level includes the following - construction of highways streets other vehicular and pedestrian ways - construction of railways - construction of airfield runways - construction work other than build-ings for stadiums swimming pools gymnasiums tennis courts golf courses and other sports installations - painting of markings on road surfaces and car parks This four-digit level excludes the following - preliminary earth moving comp 4511

45212212 and DA03 45230000 except 45231000 45232000 45234115

4524 Construction of water projects

This four-digit level includes the following building works - construction of waterways harbour and river works marinas locks etc - construction of dams and breakwaters - dredging - subsurface work

45240000

4525 Other construction work

This four-digit level includes the following - construction activities specialising in one aspect common to different kinds of structures requiring specialised skill or equipment - construction of foundations including pile driving - water well drilling and construction shaft sinking - erection of non-self-manufactured steel frame elements - steel bending - bricklaying and stone setting - erecting and dismantling of scaffolds and work platforms including rental of scaffolds and work platforms - erection of chimneys and industrial ovens This four-digit level excludes the following - rental of scaffolds without erecting and dismantling comp 7132

45250000 45262000

453 Building installation 45300000

4531 Installation of electri-cal wiring and fittings

This four-digit level includes the installation in buildings or other

45213316 45310000

50

construction projects of - electrical wiring and fittings - telecommunications systems - electrical heating systems - residential antennas - fire alarms - burglar alarm systems - lifts and escalators - lightning conductors etc

Except 45316000

4532 Insulation work This four-digit level includes the following - installation in buildings or other construction projects of thermal sound or vibration insulation This four-digit level excludes the following - waterproofing comp 4522

45320000

4533 Plumbing This four-digit level includes the installation in buildings or other construction projects of the following - plumbing and sanitary equipment and fittings - gas fittings - heating ventilation refrigeration or air-conditioning equipment and ducts - sprinkler systems This four-digit level excludes the following - installation of electrical heating systems comp 4531

45330000

4534 Other installation work

This four-digit level includes the fol-lowing - installation or other construction of illumination and signalling systems for roads railways airports and harbours - installation in buildings or other construction projects of fittings and fixtures

45234115 45316000 45340000

454 Building completion 45400000

4541 Plastering This four-digit level includes the following - application in building or other construction projects of interior and exterior plaster or stucco and other similar lathing materials

45410000

4542 Joinery installation This four-digit level includes the following - installation of non-self-manufactured doors windows door

45420000

51

and window frames fitted kitchens staircases and shop fittings made of wood or other materials - completion of interiors such as ceilings wooden wall coverings wall paneling installation of movable partitions etc This four-digit level excludes the following - laying of parquet and other wooden floor coverings comp 4543

52

4543 Floor covering and wall upholstery

This four-digit level includes the following - covering or tiling of buildings or other structures using - ceramic concrete or stone wall or floor tiles or stones - parquet or other wooden floor covering - wall-to-wall carpeting or linoleum also rubber or plastic floor covering - wall or floor covering made of mosaic marble granite or slate - wallpaper

45430000

4544 Painting and glazing This four-digit level includes the following - interior and exterior painting of buildings - exterior painting of other structures - installation of mirrors glass etc This four-digit level excludes the following - installation of windows comp 4542

45440000

4545 Other building completion

This four-digit level includes the following - construction of private swimming pools - cleaning the exterior surfaces of buildings using steam sandblasting or other similar method - other building completion work not classified elsewhere This four-digit level excludes the following - cleaning of buildings and other structures comp 7470

45212212 and DA03 45450000

455 Rental of construction or dismantling equip-ment with operators

45500000

4550 Rental of construction or dismantling equip-ment with operators

This four-digit level excludes the following - rental of construction or dismantling machines and equipment without operators comp 7132

45500000

39

If the contracting authorityentity provides the Market Court with the undertaking referred to

in subsection 1 the Market Court will not issue without a specific reason a decision on the

obligation to interim prohibition on implementing the decision to award the contract

Section 95

Temporary organisation of a contract

If an appeal has been lodged against a contract before the Market Court the contracting au-

thorityentity may temporarily organise the contract by ordering it from a supplier who partici-

pated in the contracting procedure or from a previous supplier if the nature of the contract is

such that executing the contract cannot be postponed for the duration of the Market Court pro-ceedings

Temporary contract arrangements must not hinder the execution of the following items by means of a decision of the Market Court

1) the decision of the contracting authorityentity to cancel the contract in full or in part

2) prohibit the contracting authorityentity from applying any erroneous item included in the contract document or otherwise complying with an incorrect procedure or

3) require the contracting authorityentity to rectify its incorrect procedure

Section 96

Sanctions imposed by the Market Court

If during the contract procedure actions have been taken which are against this Act or the provisions based thereon or against European Union legislation the Market Court may

1) cancel the decision of the contracting authorityentity in full or in part

2) prohibit the contracting authorityentity from applying any erroneous item included in the contract document or otherwise complying with an incorrect procedure

3) require the contracting authorityentity to correct its erroneous procedure

4) order the contracting authorityentity to pay a compensatory fee to the party which would

have had a genuine chance to win the bidding competition had the procedure been correct

5) impose an ineffectiveness sanction on the contracting authorityentity

6) order the contracting authorityentity to pay an infringement fine to the state

7) reduce the contract term to end after a period of time specified by the Market Court has

passed

The provisions of Sections 97ndash100 shall apply to determining the sanctions mentioned in sub-

section 1 points 4ndash7 above When determining these sanctions the Market Court may consid-

er the contract to have been concluded on the basis of specific circumstances provided that

the contracting authorityentity has especially commenced the implementation of the contract

The ineffectiveness sanctions infringement fine and reduction of contract terms may only be

issued in contracts exceeding the EU thresholds referred to in Section 12 However an ineffec-tiveness sanction cannot be imposed in a service contract in accordance with Annex B

Only a compensatory fee can be imposed in a contract referred to in Section 68(2) of this Act

40

Section 97

Compensation

Provision for compensation may be made if the harm caused to the contracting authori-

tyentity rights of third parties state security and the public interest by the measure defined

in Section 96(1)(1ndash3) is considered to outweigh the benefits or if the petition has been initiat-

ed following the conclusion of the contract With respect to setting the amount of the compen-

satory fee account shall be taken of the nature of the infringement or omission by the con-

tracting authorityentity the value of the contract in question and the costs and damages in-

curred by the petitioner The Market Court may however decide not to prove for compensa-

tion if the contracting authorityentity has refrained from implementing the contract during the proceedings in the Market Court

Without a specific reason the amount of compensation shall not exceed 10 percent of the val-

ue of the contract

Section 98

Ineffectiveness

The Market Court may declare a contract ineffective if

1) the contracting authorityentity has made a direct award of contract without the basis re-ferred to in this Act and the procedures referred to in Section 81

2) the contracting authorityentity has concluded the contract although there is an obligation in the contract to observe a standstill period

3) the contracting authorityentity has concluded the contract contrary to Section 92 although

the procurement case has been submitted to the Market Court for a decision

In addition a requirement in the situation referred to in subsection 1 points 2 and 3 above is

that the contracting authorityentity has made another infringement contrary to this Act which has affected the chances of the appellant to win the contract

If the contracting authorityentity has concluded the contract in a competition based on the

framework agreement on the basis of Section 80 without observing the standstill period and if

a breach has been committed in the competition in respect of Section 27(2 or 3) such that this

has affected the chances of the appellant to win the contract the Market Court may declare the contract ineffective

The Market Court shall decide to which contractual obligations ineffectiveness shall apply Inef-

fectiveness shall apply only to unfulfilled contractual obligations

Section 99

Non-imposition of ineffectiveness

In the situations referred to in Section 98 above the Market Court may decide not to impose

ineffectiveness for compelling reasons related to the public interest or state security Economic

interests which are directly related to the contract may be deemed compelling only if ineffec-tiveness of the contract would exceptionally have inequitable consequences

The Market Court may not impose ineffectiveness if it would result in serious endangerment of

the implementation of a defence and security project essentially important with respect to

state security

Section 100

41

Infringement fines and reduction of the contract term

The Market Court may order a contracting authorityentity to pay the state an infringement

fine if

1) the Market Court has declared the contract ineffective

2) the contracting authorityentity has concluded the contract although there is an obligation in the contract to observe a standstill period

3) the contracting authorityentity has concluded the contract contrary to Section 92 although the procurement case has been submitted to the Market Court for a decision or

4) the Market Court has decided not to declare the contract ineffective for compelling reasons related to the public interest or state security in accordance with Section 99

In the situation referred to in subsection 1 point 4 above the Market Court may in addition to

or instead of imposing a sanction reduce the contract term so that it ends after a period of time specified by the Court

The Market Court may order a contracting authorityentity to pay the state an infringement

fine or reduce the contract term so that it ends after a period of time specified by the Court

this applies to service contracts referred to in Annex B of this Act the value of which exceeds

the EU threshold as defined in Section 12 if the contracting authorityentity

1) has made a direct award of contract without the basis referred to in this Act and the proce-dures referred to in Section 81 not having been complied with in the direct award

2) has concluded the contract although there is an obligation in the contract to observe the standstill period

3) has concluded the contract contrary to Section 92 although the procurement case has been submitted to the Market Court for a decision or

4) has concluded the contract in a competition based on a framework agreement on the basis

of Section 80 without observing the standstill period and if a breach has been committed in the

competition in respect of Section 27(2 or 3) such that this has affected the chances of the ap-pellant to win the contract

In addition a requirement in the situation referred to in subsection 3 points 2 and 3 above is

that the contracting authorityentity has made another infringement contrary to this Act which

has affected the chances of the appellant to win the contract

With respect to issuing a sanction the Market Court shall take into account the nature of the

mistake or omission by the contracting authorityentity and the value of the contract in ques-

tion The sanction shall not exceed 10 percent of the value of the contract

Section 101

Allocation of sanctions and cumulative effect

If one contracting authorityentity has been responsible for the contracting procedure on be-

half of the other contracting authorities the obligation to compensate for legal costs can be

placed on the contracting authorityentity that acted on behalf of the other contracting authori-

ties

With respect to the sanctions referred to in this Act the Market Court shall take into considera-

tion that the cumulative effect may not become unreasonable for the contracting authori-

tyentity or its contracting party

42

Section 102

Conditional fine

The Market Court may impose a conditional fine in order to underline the importance of com-

plying with the prohibitions or obligations referred to in this Act The provisions of the Act on

Conditional Fines (11131990) shall apply to the imposing of and sentencing to the payment of

conditional fines

If one contracting authorityentity has been responsible for the contracting procedure on be-

half of the other contracting authorities the obligation to compensate for costs can be placed

on the contracting authorityentity that acted on behalf of the other contracting authorities

Section 103

Notification of the Market Courts ruling

The ruling of the Market Court along with the instructions for appeal shall be verifiably notified under the provisions of the Administrative Judicial Procedure Act

With the consent of the appellant and the contracting authorityentity the Market Courts deci-

sion together with the instructions for appeal may be publicised using the electronic contact

information the aforementioned parties have provided to the Market Court

When electronic contact information is used the appellant and the contracting authorityentity

shall be deemed to have been notified of the decision and instructions for appeal on the date

on which the message concerning the matter is available in the recipientsrsquo reception equipment

so that the message can be handled The provisions of Section 77(1) shall apply to electronic

notification

Section 104

Prohibition to appeal

A case that is within the jurisdiction of the Market Court cannot be appealed against under the

provisions of the Local Government Act or the Administrative Judicial Procedure Act

A decision or ruling concerning a contract which has been excluded from the scope of applica-

tion of this Act on the basis of Section 6(2) and Sections 78 or 13 may not be appealed under

the Administrative Judicial Procedure Act or the Local Government Act The subcontractor may

not under the Administrative Judicial Procedure Act or the Local Government Act appeal the

decision or action taken by the contracting authorityentity concerning the subcontract

Section 105

Appeals against the decisions of the Market Court

Appeals against a ruling of the Market Court can be lodged in the Supreme Administrative Court in accordance with the Administrative Judicial Procedure Act

As referred to in Section 93(1) an appeal cannot be lodged against the ruling by the Market

Court in the Supreme Administrative Court A ruling by the Market Court does not prevent the

case from being reconsidered by the Market Court if the grounds for the previous ruling have

changed

If the Market Court has ruled that it will not grant the processing authorisation referred to in

Section 88(3) then an appeal against this ruling can only be lodged if the Supreme Adminis-

trative Court grants a leave to appeal

43

Section 106

Application of the Administrative Judicial Procedure Act

The Administrative Judicial Procedure Act shall apply to appeals unless otherwise provided by this Act

Section 107

Implementation of rulings

A ruling of the Market Court has to be observed notwithstanding any appeal unless the Su-

preme Administrative Court orders otherwise The ruling of the Market Court issuing the sanc-

tion referred to in Section 96(1)(4ndash7) may only be implemented on the basis of a final ruling

The implementation of a ruling concerning a sanction shall be supervised by the Legal Register

Centre The Legal Register Centre must be informed of any ruling by the Market Court and

Supreme Administrative Court to issue a sanction

Section 108

Compensation for damages

Those who cause damage to a candidate tenderer or supplier shall be liable to pay compensa-

tion for the damage they have caused while acting in breach of this Act or any regulations based thereon or the European Union law

However when the claim for damages refers to costs incurred as a result of the tendering pro-

cedure the candidate or tenderer is entitled to compensation if it can provide proof of the in-

correct procedure as defined in subsection 1 and that had the procedure been correct it would have had a genuine chance to win the contract

In respect of the cases defined in subsection 1 and 2 a Court of first instance shall be the

competent court in accordance with Chapter 10 of the Code of Judicial Procedure

Chapter 16

Further provisions

Section 109

Disclosure of information

Notwithstanding the provisions concerning confidentiality provided for in the Act on the Open-

ness of Government Activities or in any other act the contracting authorityentity shall supply

statistics and other information concerning the different stages of the contract and performed

contracts to the Finnish authorities and European Union bodies to monitor contracts and ex-

change information on the scale and to the time limit required by European Union law Pursu-

ant to this Act the Ministry of Economic Affairs and Employment has the right to forward in-

formation it has received to the European Union authorities notwithstanding the regulations on confidentiality

The contracting authorityentity shall draw up a written report on each contract and framework

agreement which includes essential information on the contract contract procedure and the

candidates and tenderers who participated as well as on the decisions made in connection with

44

the contract The report and its main content shall be forwarded on request to the European

Commission A separate report is not required if corresponding information can be found in the

contract decision or other documents

To document the course of the realised contract procedure the contracting authorityentity

shall implement necessary measures in an electronic format

More specific rules are laid down in a Government decree on the obligation to provide statistics

and the responsibility of the contracting authorityentity to draw up reports on contract proce-

dures and contract decisions as referred to in subsection 1 which are to be forwarded to the

European Union bodies

Section 110

Entry into force and transitional provisions

This Act enters into force on 1 January 2012

If a contract procedure is started before the entry into force of this Act the provisions that

were in force at the time when this Act entered into force shall be applied The contract proce-

dure shall be deemed to have commenced when the contract notice was published A contract

which does not require the publication of the contract notice shall be deemed to have com-

menced when the invitation to tender or a meeting is sent or negotiations with suppliers begin

Measures necessary for the implementation of this Act may be undertaken before the Actrsquos

entry into force

45

ANNEX A

Primary services

Group No

Matter CPV Reference No

1 Maintenance and repair services 50000000-5 50100000-6-50884000-4 (except 50310000-1-50324200-4 and 50116510-9 50190000-3 50229000-6 50243000-0) and 51000000-9-51900000-1

2 Services related to international military assistance

75211300-1

3 Defence services military defence services and civil defence services

75220000-4 75221000-1 75222000-8

4 Investigation and security services 79700000-1-79720000-7

5 Land transport services 60000000-8 60100000-9-60183000-4 (except 60160000-7 60161000-4) and 64120000-3-64121200-2

6 Air transport services for passengers and freight except transport of mail

60400000-2 60410000-5-60424120-3 (except 60411000-2 60421000-5) 60440000-4-60445000-9 and 60500000-3

7 Transport of mail by land and by air 60160000-7 60161000-4 60411000-2 60421000-5

8 Railway transport services 60200000-0-60220000-6

9 Sea transport services 60600000-4-60653000-0 and 63727000-1-63727200-3

10 Support and auxiliary transport services 63100000-0-63111000-0 63120000-6-63121100-4 63122000-0 63512000-1 and 63520000-0-6370000-6

11 Telecommunications services 64200000-8-64228200-2 72318000-7 and 72700000-7-72720000-3

12 Financial services insurance services 66500000-5-66720000-3

13 Data-processing and related services 50310000-1-50324200-4 72000000-5-72920000-5 (except 72318000-7 and 72700000-7-72720000-3) 79342410-4 9342410-4

14 Research and development services(sup1) and evaluation tests

73000000-2-73436000-7

15 Accounting auditing and bookkeeping services

79210000-9-79212500-8

16 Management consulting(sup2) and related services

73200000-4-73220000-0 79400000-8-79421200-3 and 79342000-3 79342100-4 79342300-6 79342320-2 79342321-9 79910000-6 79991000-7 98362000-8

17 Architectural services engineering services and integrated engineering services urban planning and landscape architectural services related scientific and technical consulting services technical testing and analysis services

71000000-8-71900000-7(except 71550000-8) and 79994000-8

18 Building cleaning services and building and property management services

70300000-4-70340000-0 and 90900000-6-90924000-3

19 Sewage and refuse disposal services 90400000-1 to 90743200-9 (except 90712200-3)

46

sanitation and similar services 90910000-9-90920000-2 and 50190000-3 50229000-6 50243000-0

20 Training and simulation services in the fields of defence and security

80330000-6 80600000-0 80610000-3 80620000-6 80630000-9 80640000-2 80650000-5 80660000-8

(sup1) Except the research and development services referred to in Section 13(2)(5) (sup2) Except arbitration and conciliation services ANNEX B Secondary services

Group No

Matter CPV Reference No

21 Hotel and restaurant services 55100000-1-55524000-9 and 98340000-8-98341100-6

22 Support and auxiliary transport services 63000000-9-63734000-3 (except 63711200-8 63712700-0 63712710-3) 6372700-1-63727200-3 and 98361000-1

23 Legal services 79100000-5-79140000-7

24 Employment and personnel recruitment services(sup1)

79600000-0-79635000-4 (except 79611000-0 79632000-3 79633000-0) and 98500000-8-98514000-9

25 Health and social services 79611000-085000000-9 and -85323000-9 (except 85321000-5 and 85322000-2)

26 Other services

(sup1) Except employment contracts

47

ANNEX C NACEsup1ordm

Main category F CONSTRUCTION CPV code

2-digit level

3-digit level

4-digit level

Description Comments

45 Construction This two-digit level includes the following construction of new buildings and works reconstruction and common repairs

45000000

451 Site preparation

45100000

4511 Demolition and wreck-ing of buildings earth moving

This four-digit level includes the following - demolition of buildings and other structures - clearing of building sites and earth moving site excavation landfill and levelling trench dig-ging quarrying blasting etc - site preparation for mining

- overburden removal and other development and prepa-ration of mines and mining sites

This four-digit level also includes - building site underdrainage - drainage of agricultural or forestry land

45110000

4512 Test drilling This four-digit level includes the following - test drilling test boring and sampling for construction geophysical geological or similar purposes This four-digit level excludes the following - drilling of oil or gas wells comp 1120 - water well drilling 4525

45120000

sup1deg Council regulation (EEC) No 303790 (Official Journal of the European Union 293 24 October 1990 p 1) on the statistical classification of economic activities in the European Community issued on 9 October 1990 regulation as amended by Commission Regulation (EEC) No 76193 (Official Journal of the European Union L 83 3 April 1993 p 1) If there are differences of opinion between CPV and NACE NACE nomenclature shall apply

48

- shaft sinking comp 4525 - oil and gas field exploration geophysical geological and seismic surveying comp 7420

452 Building complete constructions or parts thereof

45200000

4521 Building work This four-digit level includes the following - Construction of all types of buildings - civil engineering and hydraulic engineering works - building of bridges including those for elevated highways metro tunnels - construction of long-distance pipelines communication cables and long-distance networks for power lines - construction of long-distance pipelines telecommunication ca-bles and municipal network power lines related installation work - on-site assembly and erection of pre-fabricated constructions This four-digit level excludes the following - services related to oil and gas extraction comp 1120 - erection of complete prefabricat-ed constructions from self-manufactured parts not of con-crete comp 20 26 28 - construction work other than buildings for stadiums swimming pools gymnasiums tennis courts golf courses and other sports installations comp 4523 building installation comp 453 - building completion comp 454 - architectural and engineering services comp 7420 - project management for construction comp 7420

45210000 Except 45213316 45220000 45231000 45232000

4522 Erection and covering of roofs

This four-digit level includes the following - erection of roofs - roof covering - waterproofing

45261000

49

4523 Construction of highways streets airports and sports equipment

This four-digit level includes the following - construction of highways streets other vehicular and pedestrian ways - construction of railways - construction of airfield runways - construction work other than build-ings for stadiums swimming pools gymnasiums tennis courts golf courses and other sports installations - painting of markings on road surfaces and car parks This four-digit level excludes the following - preliminary earth moving comp 4511

45212212 and DA03 45230000 except 45231000 45232000 45234115

4524 Construction of water projects

This four-digit level includes the following building works - construction of waterways harbour and river works marinas locks etc - construction of dams and breakwaters - dredging - subsurface work

45240000

4525 Other construction work

This four-digit level includes the following - construction activities specialising in one aspect common to different kinds of structures requiring specialised skill or equipment - construction of foundations including pile driving - water well drilling and construction shaft sinking - erection of non-self-manufactured steel frame elements - steel bending - bricklaying and stone setting - erecting and dismantling of scaffolds and work platforms including rental of scaffolds and work platforms - erection of chimneys and industrial ovens This four-digit level excludes the following - rental of scaffolds without erecting and dismantling comp 7132

45250000 45262000

453 Building installation 45300000

4531 Installation of electri-cal wiring and fittings

This four-digit level includes the installation in buildings or other

45213316 45310000

50

construction projects of - electrical wiring and fittings - telecommunications systems - electrical heating systems - residential antennas - fire alarms - burglar alarm systems - lifts and escalators - lightning conductors etc

Except 45316000

4532 Insulation work This four-digit level includes the following - installation in buildings or other construction projects of thermal sound or vibration insulation This four-digit level excludes the following - waterproofing comp 4522

45320000

4533 Plumbing This four-digit level includes the installation in buildings or other construction projects of the following - plumbing and sanitary equipment and fittings - gas fittings - heating ventilation refrigeration or air-conditioning equipment and ducts - sprinkler systems This four-digit level excludes the following - installation of electrical heating systems comp 4531

45330000

4534 Other installation work

This four-digit level includes the fol-lowing - installation or other construction of illumination and signalling systems for roads railways airports and harbours - installation in buildings or other construction projects of fittings and fixtures

45234115 45316000 45340000

454 Building completion 45400000

4541 Plastering This four-digit level includes the following - application in building or other construction projects of interior and exterior plaster or stucco and other similar lathing materials

45410000

4542 Joinery installation This four-digit level includes the following - installation of non-self-manufactured doors windows door

45420000

51

and window frames fitted kitchens staircases and shop fittings made of wood or other materials - completion of interiors such as ceilings wooden wall coverings wall paneling installation of movable partitions etc This four-digit level excludes the following - laying of parquet and other wooden floor coverings comp 4543

52

4543 Floor covering and wall upholstery

This four-digit level includes the following - covering or tiling of buildings or other structures using - ceramic concrete or stone wall or floor tiles or stones - parquet or other wooden floor covering - wall-to-wall carpeting or linoleum also rubber or plastic floor covering - wall or floor covering made of mosaic marble granite or slate - wallpaper

45430000

4544 Painting and glazing This four-digit level includes the following - interior and exterior painting of buildings - exterior painting of other structures - installation of mirrors glass etc This four-digit level excludes the following - installation of windows comp 4542

45440000

4545 Other building completion

This four-digit level includes the following - construction of private swimming pools - cleaning the exterior surfaces of buildings using steam sandblasting or other similar method - other building completion work not classified elsewhere This four-digit level excludes the following - cleaning of buildings and other structures comp 7470

45212212 and DA03 45450000

455 Rental of construction or dismantling equip-ment with operators

45500000

4550 Rental of construction or dismantling equip-ment with operators

This four-digit level excludes the following - rental of construction or dismantling machines and equipment without operators comp 7132

45500000

40

Section 97

Compensation

Provision for compensation may be made if the harm caused to the contracting authori-

tyentity rights of third parties state security and the public interest by the measure defined

in Section 96(1)(1ndash3) is considered to outweigh the benefits or if the petition has been initiat-

ed following the conclusion of the contract With respect to setting the amount of the compen-

satory fee account shall be taken of the nature of the infringement or omission by the con-

tracting authorityentity the value of the contract in question and the costs and damages in-

curred by the petitioner The Market Court may however decide not to prove for compensa-

tion if the contracting authorityentity has refrained from implementing the contract during the proceedings in the Market Court

Without a specific reason the amount of compensation shall not exceed 10 percent of the val-

ue of the contract

Section 98

Ineffectiveness

The Market Court may declare a contract ineffective if

1) the contracting authorityentity has made a direct award of contract without the basis re-ferred to in this Act and the procedures referred to in Section 81

2) the contracting authorityentity has concluded the contract although there is an obligation in the contract to observe a standstill period

3) the contracting authorityentity has concluded the contract contrary to Section 92 although

the procurement case has been submitted to the Market Court for a decision

In addition a requirement in the situation referred to in subsection 1 points 2 and 3 above is

that the contracting authorityentity has made another infringement contrary to this Act which has affected the chances of the appellant to win the contract

If the contracting authorityentity has concluded the contract in a competition based on the

framework agreement on the basis of Section 80 without observing the standstill period and if

a breach has been committed in the competition in respect of Section 27(2 or 3) such that this

has affected the chances of the appellant to win the contract the Market Court may declare the contract ineffective

The Market Court shall decide to which contractual obligations ineffectiveness shall apply Inef-

fectiveness shall apply only to unfulfilled contractual obligations

Section 99

Non-imposition of ineffectiveness

In the situations referred to in Section 98 above the Market Court may decide not to impose

ineffectiveness for compelling reasons related to the public interest or state security Economic

interests which are directly related to the contract may be deemed compelling only if ineffec-tiveness of the contract would exceptionally have inequitable consequences

The Market Court may not impose ineffectiveness if it would result in serious endangerment of

the implementation of a defence and security project essentially important with respect to

state security

Section 100

41

Infringement fines and reduction of the contract term

The Market Court may order a contracting authorityentity to pay the state an infringement

fine if

1) the Market Court has declared the contract ineffective

2) the contracting authorityentity has concluded the contract although there is an obligation in the contract to observe a standstill period

3) the contracting authorityentity has concluded the contract contrary to Section 92 although the procurement case has been submitted to the Market Court for a decision or

4) the Market Court has decided not to declare the contract ineffective for compelling reasons related to the public interest or state security in accordance with Section 99

In the situation referred to in subsection 1 point 4 above the Market Court may in addition to

or instead of imposing a sanction reduce the contract term so that it ends after a period of time specified by the Court

The Market Court may order a contracting authorityentity to pay the state an infringement

fine or reduce the contract term so that it ends after a period of time specified by the Court

this applies to service contracts referred to in Annex B of this Act the value of which exceeds

the EU threshold as defined in Section 12 if the contracting authorityentity

1) has made a direct award of contract without the basis referred to in this Act and the proce-dures referred to in Section 81 not having been complied with in the direct award

2) has concluded the contract although there is an obligation in the contract to observe the standstill period

3) has concluded the contract contrary to Section 92 although the procurement case has been submitted to the Market Court for a decision or

4) has concluded the contract in a competition based on a framework agreement on the basis

of Section 80 without observing the standstill period and if a breach has been committed in the

competition in respect of Section 27(2 or 3) such that this has affected the chances of the ap-pellant to win the contract

In addition a requirement in the situation referred to in subsection 3 points 2 and 3 above is

that the contracting authorityentity has made another infringement contrary to this Act which

has affected the chances of the appellant to win the contract

With respect to issuing a sanction the Market Court shall take into account the nature of the

mistake or omission by the contracting authorityentity and the value of the contract in ques-

tion The sanction shall not exceed 10 percent of the value of the contract

Section 101

Allocation of sanctions and cumulative effect

If one contracting authorityentity has been responsible for the contracting procedure on be-

half of the other contracting authorities the obligation to compensate for legal costs can be

placed on the contracting authorityentity that acted on behalf of the other contracting authori-

ties

With respect to the sanctions referred to in this Act the Market Court shall take into considera-

tion that the cumulative effect may not become unreasonable for the contracting authori-

tyentity or its contracting party

42

Section 102

Conditional fine

The Market Court may impose a conditional fine in order to underline the importance of com-

plying with the prohibitions or obligations referred to in this Act The provisions of the Act on

Conditional Fines (11131990) shall apply to the imposing of and sentencing to the payment of

conditional fines

If one contracting authorityentity has been responsible for the contracting procedure on be-

half of the other contracting authorities the obligation to compensate for costs can be placed

on the contracting authorityentity that acted on behalf of the other contracting authorities

Section 103

Notification of the Market Courts ruling

The ruling of the Market Court along with the instructions for appeal shall be verifiably notified under the provisions of the Administrative Judicial Procedure Act

With the consent of the appellant and the contracting authorityentity the Market Courts deci-

sion together with the instructions for appeal may be publicised using the electronic contact

information the aforementioned parties have provided to the Market Court

When electronic contact information is used the appellant and the contracting authorityentity

shall be deemed to have been notified of the decision and instructions for appeal on the date

on which the message concerning the matter is available in the recipientsrsquo reception equipment

so that the message can be handled The provisions of Section 77(1) shall apply to electronic

notification

Section 104

Prohibition to appeal

A case that is within the jurisdiction of the Market Court cannot be appealed against under the

provisions of the Local Government Act or the Administrative Judicial Procedure Act

A decision or ruling concerning a contract which has been excluded from the scope of applica-

tion of this Act on the basis of Section 6(2) and Sections 78 or 13 may not be appealed under

the Administrative Judicial Procedure Act or the Local Government Act The subcontractor may

not under the Administrative Judicial Procedure Act or the Local Government Act appeal the

decision or action taken by the contracting authorityentity concerning the subcontract

Section 105

Appeals against the decisions of the Market Court

Appeals against a ruling of the Market Court can be lodged in the Supreme Administrative Court in accordance with the Administrative Judicial Procedure Act

As referred to in Section 93(1) an appeal cannot be lodged against the ruling by the Market

Court in the Supreme Administrative Court A ruling by the Market Court does not prevent the

case from being reconsidered by the Market Court if the grounds for the previous ruling have

changed

If the Market Court has ruled that it will not grant the processing authorisation referred to in

Section 88(3) then an appeal against this ruling can only be lodged if the Supreme Adminis-

trative Court grants a leave to appeal

43

Section 106

Application of the Administrative Judicial Procedure Act

The Administrative Judicial Procedure Act shall apply to appeals unless otherwise provided by this Act

Section 107

Implementation of rulings

A ruling of the Market Court has to be observed notwithstanding any appeal unless the Su-

preme Administrative Court orders otherwise The ruling of the Market Court issuing the sanc-

tion referred to in Section 96(1)(4ndash7) may only be implemented on the basis of a final ruling

The implementation of a ruling concerning a sanction shall be supervised by the Legal Register

Centre The Legal Register Centre must be informed of any ruling by the Market Court and

Supreme Administrative Court to issue a sanction

Section 108

Compensation for damages

Those who cause damage to a candidate tenderer or supplier shall be liable to pay compensa-

tion for the damage they have caused while acting in breach of this Act or any regulations based thereon or the European Union law

However when the claim for damages refers to costs incurred as a result of the tendering pro-

cedure the candidate or tenderer is entitled to compensation if it can provide proof of the in-

correct procedure as defined in subsection 1 and that had the procedure been correct it would have had a genuine chance to win the contract

In respect of the cases defined in subsection 1 and 2 a Court of first instance shall be the

competent court in accordance with Chapter 10 of the Code of Judicial Procedure

Chapter 16

Further provisions

Section 109

Disclosure of information

Notwithstanding the provisions concerning confidentiality provided for in the Act on the Open-

ness of Government Activities or in any other act the contracting authorityentity shall supply

statistics and other information concerning the different stages of the contract and performed

contracts to the Finnish authorities and European Union bodies to monitor contracts and ex-

change information on the scale and to the time limit required by European Union law Pursu-

ant to this Act the Ministry of Economic Affairs and Employment has the right to forward in-

formation it has received to the European Union authorities notwithstanding the regulations on confidentiality

The contracting authorityentity shall draw up a written report on each contract and framework

agreement which includes essential information on the contract contract procedure and the

candidates and tenderers who participated as well as on the decisions made in connection with

44

the contract The report and its main content shall be forwarded on request to the European

Commission A separate report is not required if corresponding information can be found in the

contract decision or other documents

To document the course of the realised contract procedure the contracting authorityentity

shall implement necessary measures in an electronic format

More specific rules are laid down in a Government decree on the obligation to provide statistics

and the responsibility of the contracting authorityentity to draw up reports on contract proce-

dures and contract decisions as referred to in subsection 1 which are to be forwarded to the

European Union bodies

Section 110

Entry into force and transitional provisions

This Act enters into force on 1 January 2012

If a contract procedure is started before the entry into force of this Act the provisions that

were in force at the time when this Act entered into force shall be applied The contract proce-

dure shall be deemed to have commenced when the contract notice was published A contract

which does not require the publication of the contract notice shall be deemed to have com-

menced when the invitation to tender or a meeting is sent or negotiations with suppliers begin

Measures necessary for the implementation of this Act may be undertaken before the Actrsquos

entry into force

45

ANNEX A

Primary services

Group No

Matter CPV Reference No

1 Maintenance and repair services 50000000-5 50100000-6-50884000-4 (except 50310000-1-50324200-4 and 50116510-9 50190000-3 50229000-6 50243000-0) and 51000000-9-51900000-1

2 Services related to international military assistance

75211300-1

3 Defence services military defence services and civil defence services

75220000-4 75221000-1 75222000-8

4 Investigation and security services 79700000-1-79720000-7

5 Land transport services 60000000-8 60100000-9-60183000-4 (except 60160000-7 60161000-4) and 64120000-3-64121200-2

6 Air transport services for passengers and freight except transport of mail

60400000-2 60410000-5-60424120-3 (except 60411000-2 60421000-5) 60440000-4-60445000-9 and 60500000-3

7 Transport of mail by land and by air 60160000-7 60161000-4 60411000-2 60421000-5

8 Railway transport services 60200000-0-60220000-6

9 Sea transport services 60600000-4-60653000-0 and 63727000-1-63727200-3

10 Support and auxiliary transport services 63100000-0-63111000-0 63120000-6-63121100-4 63122000-0 63512000-1 and 63520000-0-6370000-6

11 Telecommunications services 64200000-8-64228200-2 72318000-7 and 72700000-7-72720000-3

12 Financial services insurance services 66500000-5-66720000-3

13 Data-processing and related services 50310000-1-50324200-4 72000000-5-72920000-5 (except 72318000-7 and 72700000-7-72720000-3) 79342410-4 9342410-4

14 Research and development services(sup1) and evaluation tests

73000000-2-73436000-7

15 Accounting auditing and bookkeeping services

79210000-9-79212500-8

16 Management consulting(sup2) and related services

73200000-4-73220000-0 79400000-8-79421200-3 and 79342000-3 79342100-4 79342300-6 79342320-2 79342321-9 79910000-6 79991000-7 98362000-8

17 Architectural services engineering services and integrated engineering services urban planning and landscape architectural services related scientific and technical consulting services technical testing and analysis services

71000000-8-71900000-7(except 71550000-8) and 79994000-8

18 Building cleaning services and building and property management services

70300000-4-70340000-0 and 90900000-6-90924000-3

19 Sewage and refuse disposal services 90400000-1 to 90743200-9 (except 90712200-3)

46

sanitation and similar services 90910000-9-90920000-2 and 50190000-3 50229000-6 50243000-0

20 Training and simulation services in the fields of defence and security

80330000-6 80600000-0 80610000-3 80620000-6 80630000-9 80640000-2 80650000-5 80660000-8

(sup1) Except the research and development services referred to in Section 13(2)(5) (sup2) Except arbitration and conciliation services ANNEX B Secondary services

Group No

Matter CPV Reference No

21 Hotel and restaurant services 55100000-1-55524000-9 and 98340000-8-98341100-6

22 Support and auxiliary transport services 63000000-9-63734000-3 (except 63711200-8 63712700-0 63712710-3) 6372700-1-63727200-3 and 98361000-1

23 Legal services 79100000-5-79140000-7

24 Employment and personnel recruitment services(sup1)

79600000-0-79635000-4 (except 79611000-0 79632000-3 79633000-0) and 98500000-8-98514000-9

25 Health and social services 79611000-085000000-9 and -85323000-9 (except 85321000-5 and 85322000-2)

26 Other services

(sup1) Except employment contracts

47

ANNEX C NACEsup1ordm

Main category F CONSTRUCTION CPV code

2-digit level

3-digit level

4-digit level

Description Comments

45 Construction This two-digit level includes the following construction of new buildings and works reconstruction and common repairs

45000000

451 Site preparation

45100000

4511 Demolition and wreck-ing of buildings earth moving

This four-digit level includes the following - demolition of buildings and other structures - clearing of building sites and earth moving site excavation landfill and levelling trench dig-ging quarrying blasting etc - site preparation for mining

- overburden removal and other development and prepa-ration of mines and mining sites

This four-digit level also includes - building site underdrainage - drainage of agricultural or forestry land

45110000

4512 Test drilling This four-digit level includes the following - test drilling test boring and sampling for construction geophysical geological or similar purposes This four-digit level excludes the following - drilling of oil or gas wells comp 1120 - water well drilling 4525

45120000

sup1deg Council regulation (EEC) No 303790 (Official Journal of the European Union 293 24 October 1990 p 1) on the statistical classification of economic activities in the European Community issued on 9 October 1990 regulation as amended by Commission Regulation (EEC) No 76193 (Official Journal of the European Union L 83 3 April 1993 p 1) If there are differences of opinion between CPV and NACE NACE nomenclature shall apply

48

- shaft sinking comp 4525 - oil and gas field exploration geophysical geological and seismic surveying comp 7420

452 Building complete constructions or parts thereof

45200000

4521 Building work This four-digit level includes the following - Construction of all types of buildings - civil engineering and hydraulic engineering works - building of bridges including those for elevated highways metro tunnels - construction of long-distance pipelines communication cables and long-distance networks for power lines - construction of long-distance pipelines telecommunication ca-bles and municipal network power lines related installation work - on-site assembly and erection of pre-fabricated constructions This four-digit level excludes the following - services related to oil and gas extraction comp 1120 - erection of complete prefabricat-ed constructions from self-manufactured parts not of con-crete comp 20 26 28 - construction work other than buildings for stadiums swimming pools gymnasiums tennis courts golf courses and other sports installations comp 4523 building installation comp 453 - building completion comp 454 - architectural and engineering services comp 7420 - project management for construction comp 7420

45210000 Except 45213316 45220000 45231000 45232000

4522 Erection and covering of roofs

This four-digit level includes the following - erection of roofs - roof covering - waterproofing

45261000

49

4523 Construction of highways streets airports and sports equipment

This four-digit level includes the following - construction of highways streets other vehicular and pedestrian ways - construction of railways - construction of airfield runways - construction work other than build-ings for stadiums swimming pools gymnasiums tennis courts golf courses and other sports installations - painting of markings on road surfaces and car parks This four-digit level excludes the following - preliminary earth moving comp 4511

45212212 and DA03 45230000 except 45231000 45232000 45234115

4524 Construction of water projects

This four-digit level includes the following building works - construction of waterways harbour and river works marinas locks etc - construction of dams and breakwaters - dredging - subsurface work

45240000

4525 Other construction work

This four-digit level includes the following - construction activities specialising in one aspect common to different kinds of structures requiring specialised skill or equipment - construction of foundations including pile driving - water well drilling and construction shaft sinking - erection of non-self-manufactured steel frame elements - steel bending - bricklaying and stone setting - erecting and dismantling of scaffolds and work platforms including rental of scaffolds and work platforms - erection of chimneys and industrial ovens This four-digit level excludes the following - rental of scaffolds without erecting and dismantling comp 7132

45250000 45262000

453 Building installation 45300000

4531 Installation of electri-cal wiring and fittings

This four-digit level includes the installation in buildings or other

45213316 45310000

50

construction projects of - electrical wiring and fittings - telecommunications systems - electrical heating systems - residential antennas - fire alarms - burglar alarm systems - lifts and escalators - lightning conductors etc

Except 45316000

4532 Insulation work This four-digit level includes the following - installation in buildings or other construction projects of thermal sound or vibration insulation This four-digit level excludes the following - waterproofing comp 4522

45320000

4533 Plumbing This four-digit level includes the installation in buildings or other construction projects of the following - plumbing and sanitary equipment and fittings - gas fittings - heating ventilation refrigeration or air-conditioning equipment and ducts - sprinkler systems This four-digit level excludes the following - installation of electrical heating systems comp 4531

45330000

4534 Other installation work

This four-digit level includes the fol-lowing - installation or other construction of illumination and signalling systems for roads railways airports and harbours - installation in buildings or other construction projects of fittings and fixtures

45234115 45316000 45340000

454 Building completion 45400000

4541 Plastering This four-digit level includes the following - application in building or other construction projects of interior and exterior plaster or stucco and other similar lathing materials

45410000

4542 Joinery installation This four-digit level includes the following - installation of non-self-manufactured doors windows door

45420000

51

and window frames fitted kitchens staircases and shop fittings made of wood or other materials - completion of interiors such as ceilings wooden wall coverings wall paneling installation of movable partitions etc This four-digit level excludes the following - laying of parquet and other wooden floor coverings comp 4543

52

4543 Floor covering and wall upholstery

This four-digit level includes the following - covering or tiling of buildings or other structures using - ceramic concrete or stone wall or floor tiles or stones - parquet or other wooden floor covering - wall-to-wall carpeting or linoleum also rubber or plastic floor covering - wall or floor covering made of mosaic marble granite or slate - wallpaper

45430000

4544 Painting and glazing This four-digit level includes the following - interior and exterior painting of buildings - exterior painting of other structures - installation of mirrors glass etc This four-digit level excludes the following - installation of windows comp 4542

45440000

4545 Other building completion

This four-digit level includes the following - construction of private swimming pools - cleaning the exterior surfaces of buildings using steam sandblasting or other similar method - other building completion work not classified elsewhere This four-digit level excludes the following - cleaning of buildings and other structures comp 7470

45212212 and DA03 45450000

455 Rental of construction or dismantling equip-ment with operators

45500000

4550 Rental of construction or dismantling equip-ment with operators

This four-digit level excludes the following - rental of construction or dismantling machines and equipment without operators comp 7132

45500000

41

Infringement fines and reduction of the contract term

The Market Court may order a contracting authorityentity to pay the state an infringement

fine if

1) the Market Court has declared the contract ineffective

2) the contracting authorityentity has concluded the contract although there is an obligation in the contract to observe a standstill period

3) the contracting authorityentity has concluded the contract contrary to Section 92 although the procurement case has been submitted to the Market Court for a decision or

4) the Market Court has decided not to declare the contract ineffective for compelling reasons related to the public interest or state security in accordance with Section 99

In the situation referred to in subsection 1 point 4 above the Market Court may in addition to

or instead of imposing a sanction reduce the contract term so that it ends after a period of time specified by the Court

The Market Court may order a contracting authorityentity to pay the state an infringement

fine or reduce the contract term so that it ends after a period of time specified by the Court

this applies to service contracts referred to in Annex B of this Act the value of which exceeds

the EU threshold as defined in Section 12 if the contracting authorityentity

1) has made a direct award of contract without the basis referred to in this Act and the proce-dures referred to in Section 81 not having been complied with in the direct award

2) has concluded the contract although there is an obligation in the contract to observe the standstill period

3) has concluded the contract contrary to Section 92 although the procurement case has been submitted to the Market Court for a decision or

4) has concluded the contract in a competition based on a framework agreement on the basis

of Section 80 without observing the standstill period and if a breach has been committed in the

competition in respect of Section 27(2 or 3) such that this has affected the chances of the ap-pellant to win the contract

In addition a requirement in the situation referred to in subsection 3 points 2 and 3 above is

that the contracting authorityentity has made another infringement contrary to this Act which

has affected the chances of the appellant to win the contract

With respect to issuing a sanction the Market Court shall take into account the nature of the

mistake or omission by the contracting authorityentity and the value of the contract in ques-

tion The sanction shall not exceed 10 percent of the value of the contract

Section 101

Allocation of sanctions and cumulative effect

If one contracting authorityentity has been responsible for the contracting procedure on be-

half of the other contracting authorities the obligation to compensate for legal costs can be

placed on the contracting authorityentity that acted on behalf of the other contracting authori-

ties

With respect to the sanctions referred to in this Act the Market Court shall take into considera-

tion that the cumulative effect may not become unreasonable for the contracting authori-

tyentity or its contracting party

42

Section 102

Conditional fine

The Market Court may impose a conditional fine in order to underline the importance of com-

plying with the prohibitions or obligations referred to in this Act The provisions of the Act on

Conditional Fines (11131990) shall apply to the imposing of and sentencing to the payment of

conditional fines

If one contracting authorityentity has been responsible for the contracting procedure on be-

half of the other contracting authorities the obligation to compensate for costs can be placed

on the contracting authorityentity that acted on behalf of the other contracting authorities

Section 103

Notification of the Market Courts ruling

The ruling of the Market Court along with the instructions for appeal shall be verifiably notified under the provisions of the Administrative Judicial Procedure Act

With the consent of the appellant and the contracting authorityentity the Market Courts deci-

sion together with the instructions for appeal may be publicised using the electronic contact

information the aforementioned parties have provided to the Market Court

When electronic contact information is used the appellant and the contracting authorityentity

shall be deemed to have been notified of the decision and instructions for appeal on the date

on which the message concerning the matter is available in the recipientsrsquo reception equipment

so that the message can be handled The provisions of Section 77(1) shall apply to electronic

notification

Section 104

Prohibition to appeal

A case that is within the jurisdiction of the Market Court cannot be appealed against under the

provisions of the Local Government Act or the Administrative Judicial Procedure Act

A decision or ruling concerning a contract which has been excluded from the scope of applica-

tion of this Act on the basis of Section 6(2) and Sections 78 or 13 may not be appealed under

the Administrative Judicial Procedure Act or the Local Government Act The subcontractor may

not under the Administrative Judicial Procedure Act or the Local Government Act appeal the

decision or action taken by the contracting authorityentity concerning the subcontract

Section 105

Appeals against the decisions of the Market Court

Appeals against a ruling of the Market Court can be lodged in the Supreme Administrative Court in accordance with the Administrative Judicial Procedure Act

As referred to in Section 93(1) an appeal cannot be lodged against the ruling by the Market

Court in the Supreme Administrative Court A ruling by the Market Court does not prevent the

case from being reconsidered by the Market Court if the grounds for the previous ruling have

changed

If the Market Court has ruled that it will not grant the processing authorisation referred to in

Section 88(3) then an appeal against this ruling can only be lodged if the Supreme Adminis-

trative Court grants a leave to appeal

43

Section 106

Application of the Administrative Judicial Procedure Act

The Administrative Judicial Procedure Act shall apply to appeals unless otherwise provided by this Act

Section 107

Implementation of rulings

A ruling of the Market Court has to be observed notwithstanding any appeal unless the Su-

preme Administrative Court orders otherwise The ruling of the Market Court issuing the sanc-

tion referred to in Section 96(1)(4ndash7) may only be implemented on the basis of a final ruling

The implementation of a ruling concerning a sanction shall be supervised by the Legal Register

Centre The Legal Register Centre must be informed of any ruling by the Market Court and

Supreme Administrative Court to issue a sanction

Section 108

Compensation for damages

Those who cause damage to a candidate tenderer or supplier shall be liable to pay compensa-

tion for the damage they have caused while acting in breach of this Act or any regulations based thereon or the European Union law

However when the claim for damages refers to costs incurred as a result of the tendering pro-

cedure the candidate or tenderer is entitled to compensation if it can provide proof of the in-

correct procedure as defined in subsection 1 and that had the procedure been correct it would have had a genuine chance to win the contract

In respect of the cases defined in subsection 1 and 2 a Court of first instance shall be the

competent court in accordance with Chapter 10 of the Code of Judicial Procedure

Chapter 16

Further provisions

Section 109

Disclosure of information

Notwithstanding the provisions concerning confidentiality provided for in the Act on the Open-

ness of Government Activities or in any other act the contracting authorityentity shall supply

statistics and other information concerning the different stages of the contract and performed

contracts to the Finnish authorities and European Union bodies to monitor contracts and ex-

change information on the scale and to the time limit required by European Union law Pursu-

ant to this Act the Ministry of Economic Affairs and Employment has the right to forward in-

formation it has received to the European Union authorities notwithstanding the regulations on confidentiality

The contracting authorityentity shall draw up a written report on each contract and framework

agreement which includes essential information on the contract contract procedure and the

candidates and tenderers who participated as well as on the decisions made in connection with

44

the contract The report and its main content shall be forwarded on request to the European

Commission A separate report is not required if corresponding information can be found in the

contract decision or other documents

To document the course of the realised contract procedure the contracting authorityentity

shall implement necessary measures in an electronic format

More specific rules are laid down in a Government decree on the obligation to provide statistics

and the responsibility of the contracting authorityentity to draw up reports on contract proce-

dures and contract decisions as referred to in subsection 1 which are to be forwarded to the

European Union bodies

Section 110

Entry into force and transitional provisions

This Act enters into force on 1 January 2012

If a contract procedure is started before the entry into force of this Act the provisions that

were in force at the time when this Act entered into force shall be applied The contract proce-

dure shall be deemed to have commenced when the contract notice was published A contract

which does not require the publication of the contract notice shall be deemed to have com-

menced when the invitation to tender or a meeting is sent or negotiations with suppliers begin

Measures necessary for the implementation of this Act may be undertaken before the Actrsquos

entry into force

45

ANNEX A

Primary services

Group No

Matter CPV Reference No

1 Maintenance and repair services 50000000-5 50100000-6-50884000-4 (except 50310000-1-50324200-4 and 50116510-9 50190000-3 50229000-6 50243000-0) and 51000000-9-51900000-1

2 Services related to international military assistance

75211300-1

3 Defence services military defence services and civil defence services

75220000-4 75221000-1 75222000-8

4 Investigation and security services 79700000-1-79720000-7

5 Land transport services 60000000-8 60100000-9-60183000-4 (except 60160000-7 60161000-4) and 64120000-3-64121200-2

6 Air transport services for passengers and freight except transport of mail

60400000-2 60410000-5-60424120-3 (except 60411000-2 60421000-5) 60440000-4-60445000-9 and 60500000-3

7 Transport of mail by land and by air 60160000-7 60161000-4 60411000-2 60421000-5

8 Railway transport services 60200000-0-60220000-6

9 Sea transport services 60600000-4-60653000-0 and 63727000-1-63727200-3

10 Support and auxiliary transport services 63100000-0-63111000-0 63120000-6-63121100-4 63122000-0 63512000-1 and 63520000-0-6370000-6

11 Telecommunications services 64200000-8-64228200-2 72318000-7 and 72700000-7-72720000-3

12 Financial services insurance services 66500000-5-66720000-3

13 Data-processing and related services 50310000-1-50324200-4 72000000-5-72920000-5 (except 72318000-7 and 72700000-7-72720000-3) 79342410-4 9342410-4

14 Research and development services(sup1) and evaluation tests

73000000-2-73436000-7

15 Accounting auditing and bookkeeping services

79210000-9-79212500-8

16 Management consulting(sup2) and related services

73200000-4-73220000-0 79400000-8-79421200-3 and 79342000-3 79342100-4 79342300-6 79342320-2 79342321-9 79910000-6 79991000-7 98362000-8

17 Architectural services engineering services and integrated engineering services urban planning and landscape architectural services related scientific and technical consulting services technical testing and analysis services

71000000-8-71900000-7(except 71550000-8) and 79994000-8

18 Building cleaning services and building and property management services

70300000-4-70340000-0 and 90900000-6-90924000-3

19 Sewage and refuse disposal services 90400000-1 to 90743200-9 (except 90712200-3)

46

sanitation and similar services 90910000-9-90920000-2 and 50190000-3 50229000-6 50243000-0

20 Training and simulation services in the fields of defence and security

80330000-6 80600000-0 80610000-3 80620000-6 80630000-9 80640000-2 80650000-5 80660000-8

(sup1) Except the research and development services referred to in Section 13(2)(5) (sup2) Except arbitration and conciliation services ANNEX B Secondary services

Group No

Matter CPV Reference No

21 Hotel and restaurant services 55100000-1-55524000-9 and 98340000-8-98341100-6

22 Support and auxiliary transport services 63000000-9-63734000-3 (except 63711200-8 63712700-0 63712710-3) 6372700-1-63727200-3 and 98361000-1

23 Legal services 79100000-5-79140000-7

24 Employment and personnel recruitment services(sup1)

79600000-0-79635000-4 (except 79611000-0 79632000-3 79633000-0) and 98500000-8-98514000-9

25 Health and social services 79611000-085000000-9 and -85323000-9 (except 85321000-5 and 85322000-2)

26 Other services

(sup1) Except employment contracts

47

ANNEX C NACEsup1ordm

Main category F CONSTRUCTION CPV code

2-digit level

3-digit level

4-digit level

Description Comments

45 Construction This two-digit level includes the following construction of new buildings and works reconstruction and common repairs

45000000

451 Site preparation

45100000

4511 Demolition and wreck-ing of buildings earth moving

This four-digit level includes the following - demolition of buildings and other structures - clearing of building sites and earth moving site excavation landfill and levelling trench dig-ging quarrying blasting etc - site preparation for mining

- overburden removal and other development and prepa-ration of mines and mining sites

This four-digit level also includes - building site underdrainage - drainage of agricultural or forestry land

45110000

4512 Test drilling This four-digit level includes the following - test drilling test boring and sampling for construction geophysical geological or similar purposes This four-digit level excludes the following - drilling of oil or gas wells comp 1120 - water well drilling 4525

45120000

sup1deg Council regulation (EEC) No 303790 (Official Journal of the European Union 293 24 October 1990 p 1) on the statistical classification of economic activities in the European Community issued on 9 October 1990 regulation as amended by Commission Regulation (EEC) No 76193 (Official Journal of the European Union L 83 3 April 1993 p 1) If there are differences of opinion between CPV and NACE NACE nomenclature shall apply

48

- shaft sinking comp 4525 - oil and gas field exploration geophysical geological and seismic surveying comp 7420

452 Building complete constructions or parts thereof

45200000

4521 Building work This four-digit level includes the following - Construction of all types of buildings - civil engineering and hydraulic engineering works - building of bridges including those for elevated highways metro tunnels - construction of long-distance pipelines communication cables and long-distance networks for power lines - construction of long-distance pipelines telecommunication ca-bles and municipal network power lines related installation work - on-site assembly and erection of pre-fabricated constructions This four-digit level excludes the following - services related to oil and gas extraction comp 1120 - erection of complete prefabricat-ed constructions from self-manufactured parts not of con-crete comp 20 26 28 - construction work other than buildings for stadiums swimming pools gymnasiums tennis courts golf courses and other sports installations comp 4523 building installation comp 453 - building completion comp 454 - architectural and engineering services comp 7420 - project management for construction comp 7420

45210000 Except 45213316 45220000 45231000 45232000

4522 Erection and covering of roofs

This four-digit level includes the following - erection of roofs - roof covering - waterproofing

45261000

49

4523 Construction of highways streets airports and sports equipment

This four-digit level includes the following - construction of highways streets other vehicular and pedestrian ways - construction of railways - construction of airfield runways - construction work other than build-ings for stadiums swimming pools gymnasiums tennis courts golf courses and other sports installations - painting of markings on road surfaces and car parks This four-digit level excludes the following - preliminary earth moving comp 4511

45212212 and DA03 45230000 except 45231000 45232000 45234115

4524 Construction of water projects

This four-digit level includes the following building works - construction of waterways harbour and river works marinas locks etc - construction of dams and breakwaters - dredging - subsurface work

45240000

4525 Other construction work

This four-digit level includes the following - construction activities specialising in one aspect common to different kinds of structures requiring specialised skill or equipment - construction of foundations including pile driving - water well drilling and construction shaft sinking - erection of non-self-manufactured steel frame elements - steel bending - bricklaying and stone setting - erecting and dismantling of scaffolds and work platforms including rental of scaffolds and work platforms - erection of chimneys and industrial ovens This four-digit level excludes the following - rental of scaffolds without erecting and dismantling comp 7132

45250000 45262000

453 Building installation 45300000

4531 Installation of electri-cal wiring and fittings

This four-digit level includes the installation in buildings or other

45213316 45310000

50

construction projects of - electrical wiring and fittings - telecommunications systems - electrical heating systems - residential antennas - fire alarms - burglar alarm systems - lifts and escalators - lightning conductors etc

Except 45316000

4532 Insulation work This four-digit level includes the following - installation in buildings or other construction projects of thermal sound or vibration insulation This four-digit level excludes the following - waterproofing comp 4522

45320000

4533 Plumbing This four-digit level includes the installation in buildings or other construction projects of the following - plumbing and sanitary equipment and fittings - gas fittings - heating ventilation refrigeration or air-conditioning equipment and ducts - sprinkler systems This four-digit level excludes the following - installation of electrical heating systems comp 4531

45330000

4534 Other installation work

This four-digit level includes the fol-lowing - installation or other construction of illumination and signalling systems for roads railways airports and harbours - installation in buildings or other construction projects of fittings and fixtures

45234115 45316000 45340000

454 Building completion 45400000

4541 Plastering This four-digit level includes the following - application in building or other construction projects of interior and exterior plaster or stucco and other similar lathing materials

45410000

4542 Joinery installation This four-digit level includes the following - installation of non-self-manufactured doors windows door

45420000

51

and window frames fitted kitchens staircases and shop fittings made of wood or other materials - completion of interiors such as ceilings wooden wall coverings wall paneling installation of movable partitions etc This four-digit level excludes the following - laying of parquet and other wooden floor coverings comp 4543

52

4543 Floor covering and wall upholstery

This four-digit level includes the following - covering or tiling of buildings or other structures using - ceramic concrete or stone wall or floor tiles or stones - parquet or other wooden floor covering - wall-to-wall carpeting or linoleum also rubber or plastic floor covering - wall or floor covering made of mosaic marble granite or slate - wallpaper

45430000

4544 Painting and glazing This four-digit level includes the following - interior and exterior painting of buildings - exterior painting of other structures - installation of mirrors glass etc This four-digit level excludes the following - installation of windows comp 4542

45440000

4545 Other building completion

This four-digit level includes the following - construction of private swimming pools - cleaning the exterior surfaces of buildings using steam sandblasting or other similar method - other building completion work not classified elsewhere This four-digit level excludes the following - cleaning of buildings and other structures comp 7470

45212212 and DA03 45450000

455 Rental of construction or dismantling equip-ment with operators

45500000

4550 Rental of construction or dismantling equip-ment with operators

This four-digit level excludes the following - rental of construction or dismantling machines and equipment without operators comp 7132

45500000

42

Section 102

Conditional fine

The Market Court may impose a conditional fine in order to underline the importance of com-

plying with the prohibitions or obligations referred to in this Act The provisions of the Act on

Conditional Fines (11131990) shall apply to the imposing of and sentencing to the payment of

conditional fines

If one contracting authorityentity has been responsible for the contracting procedure on be-

half of the other contracting authorities the obligation to compensate for costs can be placed

on the contracting authorityentity that acted on behalf of the other contracting authorities

Section 103

Notification of the Market Courts ruling

The ruling of the Market Court along with the instructions for appeal shall be verifiably notified under the provisions of the Administrative Judicial Procedure Act

With the consent of the appellant and the contracting authorityentity the Market Courts deci-

sion together with the instructions for appeal may be publicised using the electronic contact

information the aforementioned parties have provided to the Market Court

When electronic contact information is used the appellant and the contracting authorityentity

shall be deemed to have been notified of the decision and instructions for appeal on the date

on which the message concerning the matter is available in the recipientsrsquo reception equipment

so that the message can be handled The provisions of Section 77(1) shall apply to electronic

notification

Section 104

Prohibition to appeal

A case that is within the jurisdiction of the Market Court cannot be appealed against under the

provisions of the Local Government Act or the Administrative Judicial Procedure Act

A decision or ruling concerning a contract which has been excluded from the scope of applica-

tion of this Act on the basis of Section 6(2) and Sections 78 or 13 may not be appealed under

the Administrative Judicial Procedure Act or the Local Government Act The subcontractor may

not under the Administrative Judicial Procedure Act or the Local Government Act appeal the

decision or action taken by the contracting authorityentity concerning the subcontract

Section 105

Appeals against the decisions of the Market Court

Appeals against a ruling of the Market Court can be lodged in the Supreme Administrative Court in accordance with the Administrative Judicial Procedure Act

As referred to in Section 93(1) an appeal cannot be lodged against the ruling by the Market

Court in the Supreme Administrative Court A ruling by the Market Court does not prevent the

case from being reconsidered by the Market Court if the grounds for the previous ruling have

changed

If the Market Court has ruled that it will not grant the processing authorisation referred to in

Section 88(3) then an appeal against this ruling can only be lodged if the Supreme Adminis-

trative Court grants a leave to appeal

43

Section 106

Application of the Administrative Judicial Procedure Act

The Administrative Judicial Procedure Act shall apply to appeals unless otherwise provided by this Act

Section 107

Implementation of rulings

A ruling of the Market Court has to be observed notwithstanding any appeal unless the Su-

preme Administrative Court orders otherwise The ruling of the Market Court issuing the sanc-

tion referred to in Section 96(1)(4ndash7) may only be implemented on the basis of a final ruling

The implementation of a ruling concerning a sanction shall be supervised by the Legal Register

Centre The Legal Register Centre must be informed of any ruling by the Market Court and

Supreme Administrative Court to issue a sanction

Section 108

Compensation for damages

Those who cause damage to a candidate tenderer or supplier shall be liable to pay compensa-

tion for the damage they have caused while acting in breach of this Act or any regulations based thereon or the European Union law

However when the claim for damages refers to costs incurred as a result of the tendering pro-

cedure the candidate or tenderer is entitled to compensation if it can provide proof of the in-

correct procedure as defined in subsection 1 and that had the procedure been correct it would have had a genuine chance to win the contract

In respect of the cases defined in subsection 1 and 2 a Court of first instance shall be the

competent court in accordance with Chapter 10 of the Code of Judicial Procedure

Chapter 16

Further provisions

Section 109

Disclosure of information

Notwithstanding the provisions concerning confidentiality provided for in the Act on the Open-

ness of Government Activities or in any other act the contracting authorityentity shall supply

statistics and other information concerning the different stages of the contract and performed

contracts to the Finnish authorities and European Union bodies to monitor contracts and ex-

change information on the scale and to the time limit required by European Union law Pursu-

ant to this Act the Ministry of Economic Affairs and Employment has the right to forward in-

formation it has received to the European Union authorities notwithstanding the regulations on confidentiality

The contracting authorityentity shall draw up a written report on each contract and framework

agreement which includes essential information on the contract contract procedure and the

candidates and tenderers who participated as well as on the decisions made in connection with

44

the contract The report and its main content shall be forwarded on request to the European

Commission A separate report is not required if corresponding information can be found in the

contract decision or other documents

To document the course of the realised contract procedure the contracting authorityentity

shall implement necessary measures in an electronic format

More specific rules are laid down in a Government decree on the obligation to provide statistics

and the responsibility of the contracting authorityentity to draw up reports on contract proce-

dures and contract decisions as referred to in subsection 1 which are to be forwarded to the

European Union bodies

Section 110

Entry into force and transitional provisions

This Act enters into force on 1 January 2012

If a contract procedure is started before the entry into force of this Act the provisions that

were in force at the time when this Act entered into force shall be applied The contract proce-

dure shall be deemed to have commenced when the contract notice was published A contract

which does not require the publication of the contract notice shall be deemed to have com-

menced when the invitation to tender or a meeting is sent or negotiations with suppliers begin

Measures necessary for the implementation of this Act may be undertaken before the Actrsquos

entry into force

45

ANNEX A

Primary services

Group No

Matter CPV Reference No

1 Maintenance and repair services 50000000-5 50100000-6-50884000-4 (except 50310000-1-50324200-4 and 50116510-9 50190000-3 50229000-6 50243000-0) and 51000000-9-51900000-1

2 Services related to international military assistance

75211300-1

3 Defence services military defence services and civil defence services

75220000-4 75221000-1 75222000-8

4 Investigation and security services 79700000-1-79720000-7

5 Land transport services 60000000-8 60100000-9-60183000-4 (except 60160000-7 60161000-4) and 64120000-3-64121200-2

6 Air transport services for passengers and freight except transport of mail

60400000-2 60410000-5-60424120-3 (except 60411000-2 60421000-5) 60440000-4-60445000-9 and 60500000-3

7 Transport of mail by land and by air 60160000-7 60161000-4 60411000-2 60421000-5

8 Railway transport services 60200000-0-60220000-6

9 Sea transport services 60600000-4-60653000-0 and 63727000-1-63727200-3

10 Support and auxiliary transport services 63100000-0-63111000-0 63120000-6-63121100-4 63122000-0 63512000-1 and 63520000-0-6370000-6

11 Telecommunications services 64200000-8-64228200-2 72318000-7 and 72700000-7-72720000-3

12 Financial services insurance services 66500000-5-66720000-3

13 Data-processing and related services 50310000-1-50324200-4 72000000-5-72920000-5 (except 72318000-7 and 72700000-7-72720000-3) 79342410-4 9342410-4

14 Research and development services(sup1) and evaluation tests

73000000-2-73436000-7

15 Accounting auditing and bookkeeping services

79210000-9-79212500-8

16 Management consulting(sup2) and related services

73200000-4-73220000-0 79400000-8-79421200-3 and 79342000-3 79342100-4 79342300-6 79342320-2 79342321-9 79910000-6 79991000-7 98362000-8

17 Architectural services engineering services and integrated engineering services urban planning and landscape architectural services related scientific and technical consulting services technical testing and analysis services

71000000-8-71900000-7(except 71550000-8) and 79994000-8

18 Building cleaning services and building and property management services

70300000-4-70340000-0 and 90900000-6-90924000-3

19 Sewage and refuse disposal services 90400000-1 to 90743200-9 (except 90712200-3)

46

sanitation and similar services 90910000-9-90920000-2 and 50190000-3 50229000-6 50243000-0

20 Training and simulation services in the fields of defence and security

80330000-6 80600000-0 80610000-3 80620000-6 80630000-9 80640000-2 80650000-5 80660000-8

(sup1) Except the research and development services referred to in Section 13(2)(5) (sup2) Except arbitration and conciliation services ANNEX B Secondary services

Group No

Matter CPV Reference No

21 Hotel and restaurant services 55100000-1-55524000-9 and 98340000-8-98341100-6

22 Support and auxiliary transport services 63000000-9-63734000-3 (except 63711200-8 63712700-0 63712710-3) 6372700-1-63727200-3 and 98361000-1

23 Legal services 79100000-5-79140000-7

24 Employment and personnel recruitment services(sup1)

79600000-0-79635000-4 (except 79611000-0 79632000-3 79633000-0) and 98500000-8-98514000-9

25 Health and social services 79611000-085000000-9 and -85323000-9 (except 85321000-5 and 85322000-2)

26 Other services

(sup1) Except employment contracts

47

ANNEX C NACEsup1ordm

Main category F CONSTRUCTION CPV code

2-digit level

3-digit level

4-digit level

Description Comments

45 Construction This two-digit level includes the following construction of new buildings and works reconstruction and common repairs

45000000

451 Site preparation

45100000

4511 Demolition and wreck-ing of buildings earth moving

This four-digit level includes the following - demolition of buildings and other structures - clearing of building sites and earth moving site excavation landfill and levelling trench dig-ging quarrying blasting etc - site preparation for mining

- overburden removal and other development and prepa-ration of mines and mining sites

This four-digit level also includes - building site underdrainage - drainage of agricultural or forestry land

45110000

4512 Test drilling This four-digit level includes the following - test drilling test boring and sampling for construction geophysical geological or similar purposes This four-digit level excludes the following - drilling of oil or gas wells comp 1120 - water well drilling 4525

45120000

sup1deg Council regulation (EEC) No 303790 (Official Journal of the European Union 293 24 October 1990 p 1) on the statistical classification of economic activities in the European Community issued on 9 October 1990 regulation as amended by Commission Regulation (EEC) No 76193 (Official Journal of the European Union L 83 3 April 1993 p 1) If there are differences of opinion between CPV and NACE NACE nomenclature shall apply

48

- shaft sinking comp 4525 - oil and gas field exploration geophysical geological and seismic surveying comp 7420

452 Building complete constructions or parts thereof

45200000

4521 Building work This four-digit level includes the following - Construction of all types of buildings - civil engineering and hydraulic engineering works - building of bridges including those for elevated highways metro tunnels - construction of long-distance pipelines communication cables and long-distance networks for power lines - construction of long-distance pipelines telecommunication ca-bles and municipal network power lines related installation work - on-site assembly and erection of pre-fabricated constructions This four-digit level excludes the following - services related to oil and gas extraction comp 1120 - erection of complete prefabricat-ed constructions from self-manufactured parts not of con-crete comp 20 26 28 - construction work other than buildings for stadiums swimming pools gymnasiums tennis courts golf courses and other sports installations comp 4523 building installation comp 453 - building completion comp 454 - architectural and engineering services comp 7420 - project management for construction comp 7420

45210000 Except 45213316 45220000 45231000 45232000

4522 Erection and covering of roofs

This four-digit level includes the following - erection of roofs - roof covering - waterproofing

45261000

49

4523 Construction of highways streets airports and sports equipment

This four-digit level includes the following - construction of highways streets other vehicular and pedestrian ways - construction of railways - construction of airfield runways - construction work other than build-ings for stadiums swimming pools gymnasiums tennis courts golf courses and other sports installations - painting of markings on road surfaces and car parks This four-digit level excludes the following - preliminary earth moving comp 4511

45212212 and DA03 45230000 except 45231000 45232000 45234115

4524 Construction of water projects

This four-digit level includes the following building works - construction of waterways harbour and river works marinas locks etc - construction of dams and breakwaters - dredging - subsurface work

45240000

4525 Other construction work

This four-digit level includes the following - construction activities specialising in one aspect common to different kinds of structures requiring specialised skill or equipment - construction of foundations including pile driving - water well drilling and construction shaft sinking - erection of non-self-manufactured steel frame elements - steel bending - bricklaying and stone setting - erecting and dismantling of scaffolds and work platforms including rental of scaffolds and work platforms - erection of chimneys and industrial ovens This four-digit level excludes the following - rental of scaffolds without erecting and dismantling comp 7132

45250000 45262000

453 Building installation 45300000

4531 Installation of electri-cal wiring and fittings

This four-digit level includes the installation in buildings or other

45213316 45310000

50

construction projects of - electrical wiring and fittings - telecommunications systems - electrical heating systems - residential antennas - fire alarms - burglar alarm systems - lifts and escalators - lightning conductors etc

Except 45316000

4532 Insulation work This four-digit level includes the following - installation in buildings or other construction projects of thermal sound or vibration insulation This four-digit level excludes the following - waterproofing comp 4522

45320000

4533 Plumbing This four-digit level includes the installation in buildings or other construction projects of the following - plumbing and sanitary equipment and fittings - gas fittings - heating ventilation refrigeration or air-conditioning equipment and ducts - sprinkler systems This four-digit level excludes the following - installation of electrical heating systems comp 4531

45330000

4534 Other installation work

This four-digit level includes the fol-lowing - installation or other construction of illumination and signalling systems for roads railways airports and harbours - installation in buildings or other construction projects of fittings and fixtures

45234115 45316000 45340000

454 Building completion 45400000

4541 Plastering This four-digit level includes the following - application in building or other construction projects of interior and exterior plaster or stucco and other similar lathing materials

45410000

4542 Joinery installation This four-digit level includes the following - installation of non-self-manufactured doors windows door

45420000

51

and window frames fitted kitchens staircases and shop fittings made of wood or other materials - completion of interiors such as ceilings wooden wall coverings wall paneling installation of movable partitions etc This four-digit level excludes the following - laying of parquet and other wooden floor coverings comp 4543

52

4543 Floor covering and wall upholstery

This four-digit level includes the following - covering or tiling of buildings or other structures using - ceramic concrete or stone wall or floor tiles or stones - parquet or other wooden floor covering - wall-to-wall carpeting or linoleum also rubber or plastic floor covering - wall or floor covering made of mosaic marble granite or slate - wallpaper

45430000

4544 Painting and glazing This four-digit level includes the following - interior and exterior painting of buildings - exterior painting of other structures - installation of mirrors glass etc This four-digit level excludes the following - installation of windows comp 4542

45440000

4545 Other building completion

This four-digit level includes the following - construction of private swimming pools - cleaning the exterior surfaces of buildings using steam sandblasting or other similar method - other building completion work not classified elsewhere This four-digit level excludes the following - cleaning of buildings and other structures comp 7470

45212212 and DA03 45450000

455 Rental of construction or dismantling equip-ment with operators

45500000

4550 Rental of construction or dismantling equip-ment with operators

This four-digit level excludes the following - rental of construction or dismantling machines and equipment without operators comp 7132

45500000

43

Section 106

Application of the Administrative Judicial Procedure Act

The Administrative Judicial Procedure Act shall apply to appeals unless otherwise provided by this Act

Section 107

Implementation of rulings

A ruling of the Market Court has to be observed notwithstanding any appeal unless the Su-

preme Administrative Court orders otherwise The ruling of the Market Court issuing the sanc-

tion referred to in Section 96(1)(4ndash7) may only be implemented on the basis of a final ruling

The implementation of a ruling concerning a sanction shall be supervised by the Legal Register

Centre The Legal Register Centre must be informed of any ruling by the Market Court and

Supreme Administrative Court to issue a sanction

Section 108

Compensation for damages

Those who cause damage to a candidate tenderer or supplier shall be liable to pay compensa-

tion for the damage they have caused while acting in breach of this Act or any regulations based thereon or the European Union law

However when the claim for damages refers to costs incurred as a result of the tendering pro-

cedure the candidate or tenderer is entitled to compensation if it can provide proof of the in-

correct procedure as defined in subsection 1 and that had the procedure been correct it would have had a genuine chance to win the contract

In respect of the cases defined in subsection 1 and 2 a Court of first instance shall be the

competent court in accordance with Chapter 10 of the Code of Judicial Procedure

Chapter 16

Further provisions

Section 109

Disclosure of information

Notwithstanding the provisions concerning confidentiality provided for in the Act on the Open-

ness of Government Activities or in any other act the contracting authorityentity shall supply

statistics and other information concerning the different stages of the contract and performed

contracts to the Finnish authorities and European Union bodies to monitor contracts and ex-

change information on the scale and to the time limit required by European Union law Pursu-

ant to this Act the Ministry of Economic Affairs and Employment has the right to forward in-

formation it has received to the European Union authorities notwithstanding the regulations on confidentiality

The contracting authorityentity shall draw up a written report on each contract and framework

agreement which includes essential information on the contract contract procedure and the

candidates and tenderers who participated as well as on the decisions made in connection with

44

the contract The report and its main content shall be forwarded on request to the European

Commission A separate report is not required if corresponding information can be found in the

contract decision or other documents

To document the course of the realised contract procedure the contracting authorityentity

shall implement necessary measures in an electronic format

More specific rules are laid down in a Government decree on the obligation to provide statistics

and the responsibility of the contracting authorityentity to draw up reports on contract proce-

dures and contract decisions as referred to in subsection 1 which are to be forwarded to the

European Union bodies

Section 110

Entry into force and transitional provisions

This Act enters into force on 1 January 2012

If a contract procedure is started before the entry into force of this Act the provisions that

were in force at the time when this Act entered into force shall be applied The contract proce-

dure shall be deemed to have commenced when the contract notice was published A contract

which does not require the publication of the contract notice shall be deemed to have com-

menced when the invitation to tender or a meeting is sent or negotiations with suppliers begin

Measures necessary for the implementation of this Act may be undertaken before the Actrsquos

entry into force

45

ANNEX A

Primary services

Group No

Matter CPV Reference No

1 Maintenance and repair services 50000000-5 50100000-6-50884000-4 (except 50310000-1-50324200-4 and 50116510-9 50190000-3 50229000-6 50243000-0) and 51000000-9-51900000-1

2 Services related to international military assistance

75211300-1

3 Defence services military defence services and civil defence services

75220000-4 75221000-1 75222000-8

4 Investigation and security services 79700000-1-79720000-7

5 Land transport services 60000000-8 60100000-9-60183000-4 (except 60160000-7 60161000-4) and 64120000-3-64121200-2

6 Air transport services for passengers and freight except transport of mail

60400000-2 60410000-5-60424120-3 (except 60411000-2 60421000-5) 60440000-4-60445000-9 and 60500000-3

7 Transport of mail by land and by air 60160000-7 60161000-4 60411000-2 60421000-5

8 Railway transport services 60200000-0-60220000-6

9 Sea transport services 60600000-4-60653000-0 and 63727000-1-63727200-3

10 Support and auxiliary transport services 63100000-0-63111000-0 63120000-6-63121100-4 63122000-0 63512000-1 and 63520000-0-6370000-6

11 Telecommunications services 64200000-8-64228200-2 72318000-7 and 72700000-7-72720000-3

12 Financial services insurance services 66500000-5-66720000-3

13 Data-processing and related services 50310000-1-50324200-4 72000000-5-72920000-5 (except 72318000-7 and 72700000-7-72720000-3) 79342410-4 9342410-4

14 Research and development services(sup1) and evaluation tests

73000000-2-73436000-7

15 Accounting auditing and bookkeeping services

79210000-9-79212500-8

16 Management consulting(sup2) and related services

73200000-4-73220000-0 79400000-8-79421200-3 and 79342000-3 79342100-4 79342300-6 79342320-2 79342321-9 79910000-6 79991000-7 98362000-8

17 Architectural services engineering services and integrated engineering services urban planning and landscape architectural services related scientific and technical consulting services technical testing and analysis services

71000000-8-71900000-7(except 71550000-8) and 79994000-8

18 Building cleaning services and building and property management services

70300000-4-70340000-0 and 90900000-6-90924000-3

19 Sewage and refuse disposal services 90400000-1 to 90743200-9 (except 90712200-3)

46

sanitation and similar services 90910000-9-90920000-2 and 50190000-3 50229000-6 50243000-0

20 Training and simulation services in the fields of defence and security

80330000-6 80600000-0 80610000-3 80620000-6 80630000-9 80640000-2 80650000-5 80660000-8

(sup1) Except the research and development services referred to in Section 13(2)(5) (sup2) Except arbitration and conciliation services ANNEX B Secondary services

Group No

Matter CPV Reference No

21 Hotel and restaurant services 55100000-1-55524000-9 and 98340000-8-98341100-6

22 Support and auxiliary transport services 63000000-9-63734000-3 (except 63711200-8 63712700-0 63712710-3) 6372700-1-63727200-3 and 98361000-1

23 Legal services 79100000-5-79140000-7

24 Employment and personnel recruitment services(sup1)

79600000-0-79635000-4 (except 79611000-0 79632000-3 79633000-0) and 98500000-8-98514000-9

25 Health and social services 79611000-085000000-9 and -85323000-9 (except 85321000-5 and 85322000-2)

26 Other services

(sup1) Except employment contracts

47

ANNEX C NACEsup1ordm

Main category F CONSTRUCTION CPV code

2-digit level

3-digit level

4-digit level

Description Comments

45 Construction This two-digit level includes the following construction of new buildings and works reconstruction and common repairs

45000000

451 Site preparation

45100000

4511 Demolition and wreck-ing of buildings earth moving

This four-digit level includes the following - demolition of buildings and other structures - clearing of building sites and earth moving site excavation landfill and levelling trench dig-ging quarrying blasting etc - site preparation for mining

- overburden removal and other development and prepa-ration of mines and mining sites

This four-digit level also includes - building site underdrainage - drainage of agricultural or forestry land

45110000

4512 Test drilling This four-digit level includes the following - test drilling test boring and sampling for construction geophysical geological or similar purposes This four-digit level excludes the following - drilling of oil or gas wells comp 1120 - water well drilling 4525

45120000

sup1deg Council regulation (EEC) No 303790 (Official Journal of the European Union 293 24 October 1990 p 1) on the statistical classification of economic activities in the European Community issued on 9 October 1990 regulation as amended by Commission Regulation (EEC) No 76193 (Official Journal of the European Union L 83 3 April 1993 p 1) If there are differences of opinion between CPV and NACE NACE nomenclature shall apply

48

- shaft sinking comp 4525 - oil and gas field exploration geophysical geological and seismic surveying comp 7420

452 Building complete constructions or parts thereof

45200000

4521 Building work This four-digit level includes the following - Construction of all types of buildings - civil engineering and hydraulic engineering works - building of bridges including those for elevated highways metro tunnels - construction of long-distance pipelines communication cables and long-distance networks for power lines - construction of long-distance pipelines telecommunication ca-bles and municipal network power lines related installation work - on-site assembly and erection of pre-fabricated constructions This four-digit level excludes the following - services related to oil and gas extraction comp 1120 - erection of complete prefabricat-ed constructions from self-manufactured parts not of con-crete comp 20 26 28 - construction work other than buildings for stadiums swimming pools gymnasiums tennis courts golf courses and other sports installations comp 4523 building installation comp 453 - building completion comp 454 - architectural and engineering services comp 7420 - project management for construction comp 7420

45210000 Except 45213316 45220000 45231000 45232000

4522 Erection and covering of roofs

This four-digit level includes the following - erection of roofs - roof covering - waterproofing

45261000

49

4523 Construction of highways streets airports and sports equipment

This four-digit level includes the following - construction of highways streets other vehicular and pedestrian ways - construction of railways - construction of airfield runways - construction work other than build-ings for stadiums swimming pools gymnasiums tennis courts golf courses and other sports installations - painting of markings on road surfaces and car parks This four-digit level excludes the following - preliminary earth moving comp 4511

45212212 and DA03 45230000 except 45231000 45232000 45234115

4524 Construction of water projects

This four-digit level includes the following building works - construction of waterways harbour and river works marinas locks etc - construction of dams and breakwaters - dredging - subsurface work

45240000

4525 Other construction work

This four-digit level includes the following - construction activities specialising in one aspect common to different kinds of structures requiring specialised skill or equipment - construction of foundations including pile driving - water well drilling and construction shaft sinking - erection of non-self-manufactured steel frame elements - steel bending - bricklaying and stone setting - erecting and dismantling of scaffolds and work platforms including rental of scaffolds and work platforms - erection of chimneys and industrial ovens This four-digit level excludes the following - rental of scaffolds without erecting and dismantling comp 7132

45250000 45262000

453 Building installation 45300000

4531 Installation of electri-cal wiring and fittings

This four-digit level includes the installation in buildings or other

45213316 45310000

50

construction projects of - electrical wiring and fittings - telecommunications systems - electrical heating systems - residential antennas - fire alarms - burglar alarm systems - lifts and escalators - lightning conductors etc

Except 45316000

4532 Insulation work This four-digit level includes the following - installation in buildings or other construction projects of thermal sound or vibration insulation This four-digit level excludes the following - waterproofing comp 4522

45320000

4533 Plumbing This four-digit level includes the installation in buildings or other construction projects of the following - plumbing and sanitary equipment and fittings - gas fittings - heating ventilation refrigeration or air-conditioning equipment and ducts - sprinkler systems This four-digit level excludes the following - installation of electrical heating systems comp 4531

45330000

4534 Other installation work

This four-digit level includes the fol-lowing - installation or other construction of illumination and signalling systems for roads railways airports and harbours - installation in buildings or other construction projects of fittings and fixtures

45234115 45316000 45340000

454 Building completion 45400000

4541 Plastering This four-digit level includes the following - application in building or other construction projects of interior and exterior plaster or stucco and other similar lathing materials

45410000

4542 Joinery installation This four-digit level includes the following - installation of non-self-manufactured doors windows door

45420000

51

and window frames fitted kitchens staircases and shop fittings made of wood or other materials - completion of interiors such as ceilings wooden wall coverings wall paneling installation of movable partitions etc This four-digit level excludes the following - laying of parquet and other wooden floor coverings comp 4543

52

4543 Floor covering and wall upholstery

This four-digit level includes the following - covering or tiling of buildings or other structures using - ceramic concrete or stone wall or floor tiles or stones - parquet or other wooden floor covering - wall-to-wall carpeting or linoleum also rubber or plastic floor covering - wall or floor covering made of mosaic marble granite or slate - wallpaper

45430000

4544 Painting and glazing This four-digit level includes the following - interior and exterior painting of buildings - exterior painting of other structures - installation of mirrors glass etc This four-digit level excludes the following - installation of windows comp 4542

45440000

4545 Other building completion

This four-digit level includes the following - construction of private swimming pools - cleaning the exterior surfaces of buildings using steam sandblasting or other similar method - other building completion work not classified elsewhere This four-digit level excludes the following - cleaning of buildings and other structures comp 7470

45212212 and DA03 45450000

455 Rental of construction or dismantling equip-ment with operators

45500000

4550 Rental of construction or dismantling equip-ment with operators

This four-digit level excludes the following - rental of construction or dismantling machines and equipment without operators comp 7132

45500000

44

the contract The report and its main content shall be forwarded on request to the European

Commission A separate report is not required if corresponding information can be found in the

contract decision or other documents

To document the course of the realised contract procedure the contracting authorityentity

shall implement necessary measures in an electronic format

More specific rules are laid down in a Government decree on the obligation to provide statistics

and the responsibility of the contracting authorityentity to draw up reports on contract proce-

dures and contract decisions as referred to in subsection 1 which are to be forwarded to the

European Union bodies

Section 110

Entry into force and transitional provisions

This Act enters into force on 1 January 2012

If a contract procedure is started before the entry into force of this Act the provisions that

were in force at the time when this Act entered into force shall be applied The contract proce-

dure shall be deemed to have commenced when the contract notice was published A contract

which does not require the publication of the contract notice shall be deemed to have com-

menced when the invitation to tender or a meeting is sent or negotiations with suppliers begin

Measures necessary for the implementation of this Act may be undertaken before the Actrsquos

entry into force

45

ANNEX A

Primary services

Group No

Matter CPV Reference No

1 Maintenance and repair services 50000000-5 50100000-6-50884000-4 (except 50310000-1-50324200-4 and 50116510-9 50190000-3 50229000-6 50243000-0) and 51000000-9-51900000-1

2 Services related to international military assistance

75211300-1

3 Defence services military defence services and civil defence services

75220000-4 75221000-1 75222000-8

4 Investigation and security services 79700000-1-79720000-7

5 Land transport services 60000000-8 60100000-9-60183000-4 (except 60160000-7 60161000-4) and 64120000-3-64121200-2

6 Air transport services for passengers and freight except transport of mail

60400000-2 60410000-5-60424120-3 (except 60411000-2 60421000-5) 60440000-4-60445000-9 and 60500000-3

7 Transport of mail by land and by air 60160000-7 60161000-4 60411000-2 60421000-5

8 Railway transport services 60200000-0-60220000-6

9 Sea transport services 60600000-4-60653000-0 and 63727000-1-63727200-3

10 Support and auxiliary transport services 63100000-0-63111000-0 63120000-6-63121100-4 63122000-0 63512000-1 and 63520000-0-6370000-6

11 Telecommunications services 64200000-8-64228200-2 72318000-7 and 72700000-7-72720000-3

12 Financial services insurance services 66500000-5-66720000-3

13 Data-processing and related services 50310000-1-50324200-4 72000000-5-72920000-5 (except 72318000-7 and 72700000-7-72720000-3) 79342410-4 9342410-4

14 Research and development services(sup1) and evaluation tests

73000000-2-73436000-7

15 Accounting auditing and bookkeeping services

79210000-9-79212500-8

16 Management consulting(sup2) and related services

73200000-4-73220000-0 79400000-8-79421200-3 and 79342000-3 79342100-4 79342300-6 79342320-2 79342321-9 79910000-6 79991000-7 98362000-8

17 Architectural services engineering services and integrated engineering services urban planning and landscape architectural services related scientific and technical consulting services technical testing and analysis services

71000000-8-71900000-7(except 71550000-8) and 79994000-8

18 Building cleaning services and building and property management services

70300000-4-70340000-0 and 90900000-6-90924000-3

19 Sewage and refuse disposal services 90400000-1 to 90743200-9 (except 90712200-3)

46

sanitation and similar services 90910000-9-90920000-2 and 50190000-3 50229000-6 50243000-0

20 Training and simulation services in the fields of defence and security

80330000-6 80600000-0 80610000-3 80620000-6 80630000-9 80640000-2 80650000-5 80660000-8

(sup1) Except the research and development services referred to in Section 13(2)(5) (sup2) Except arbitration and conciliation services ANNEX B Secondary services

Group No

Matter CPV Reference No

21 Hotel and restaurant services 55100000-1-55524000-9 and 98340000-8-98341100-6

22 Support and auxiliary transport services 63000000-9-63734000-3 (except 63711200-8 63712700-0 63712710-3) 6372700-1-63727200-3 and 98361000-1

23 Legal services 79100000-5-79140000-7

24 Employment and personnel recruitment services(sup1)

79600000-0-79635000-4 (except 79611000-0 79632000-3 79633000-0) and 98500000-8-98514000-9

25 Health and social services 79611000-085000000-9 and -85323000-9 (except 85321000-5 and 85322000-2)

26 Other services

(sup1) Except employment contracts

47

ANNEX C NACEsup1ordm

Main category F CONSTRUCTION CPV code

2-digit level

3-digit level

4-digit level

Description Comments

45 Construction This two-digit level includes the following construction of new buildings and works reconstruction and common repairs

45000000

451 Site preparation

45100000

4511 Demolition and wreck-ing of buildings earth moving

This four-digit level includes the following - demolition of buildings and other structures - clearing of building sites and earth moving site excavation landfill and levelling trench dig-ging quarrying blasting etc - site preparation for mining

- overburden removal and other development and prepa-ration of mines and mining sites

This four-digit level also includes - building site underdrainage - drainage of agricultural or forestry land

45110000

4512 Test drilling This four-digit level includes the following - test drilling test boring and sampling for construction geophysical geological or similar purposes This four-digit level excludes the following - drilling of oil or gas wells comp 1120 - water well drilling 4525

45120000

sup1deg Council regulation (EEC) No 303790 (Official Journal of the European Union 293 24 October 1990 p 1) on the statistical classification of economic activities in the European Community issued on 9 October 1990 regulation as amended by Commission Regulation (EEC) No 76193 (Official Journal of the European Union L 83 3 April 1993 p 1) If there are differences of opinion between CPV and NACE NACE nomenclature shall apply

48

- shaft sinking comp 4525 - oil and gas field exploration geophysical geological and seismic surveying comp 7420

452 Building complete constructions or parts thereof

45200000

4521 Building work This four-digit level includes the following - Construction of all types of buildings - civil engineering and hydraulic engineering works - building of bridges including those for elevated highways metro tunnels - construction of long-distance pipelines communication cables and long-distance networks for power lines - construction of long-distance pipelines telecommunication ca-bles and municipal network power lines related installation work - on-site assembly and erection of pre-fabricated constructions This four-digit level excludes the following - services related to oil and gas extraction comp 1120 - erection of complete prefabricat-ed constructions from self-manufactured parts not of con-crete comp 20 26 28 - construction work other than buildings for stadiums swimming pools gymnasiums tennis courts golf courses and other sports installations comp 4523 building installation comp 453 - building completion comp 454 - architectural and engineering services comp 7420 - project management for construction comp 7420

45210000 Except 45213316 45220000 45231000 45232000

4522 Erection and covering of roofs

This four-digit level includes the following - erection of roofs - roof covering - waterproofing

45261000

49

4523 Construction of highways streets airports and sports equipment

This four-digit level includes the following - construction of highways streets other vehicular and pedestrian ways - construction of railways - construction of airfield runways - construction work other than build-ings for stadiums swimming pools gymnasiums tennis courts golf courses and other sports installations - painting of markings on road surfaces and car parks This four-digit level excludes the following - preliminary earth moving comp 4511

45212212 and DA03 45230000 except 45231000 45232000 45234115

4524 Construction of water projects

This four-digit level includes the following building works - construction of waterways harbour and river works marinas locks etc - construction of dams and breakwaters - dredging - subsurface work

45240000

4525 Other construction work

This four-digit level includes the following - construction activities specialising in one aspect common to different kinds of structures requiring specialised skill or equipment - construction of foundations including pile driving - water well drilling and construction shaft sinking - erection of non-self-manufactured steel frame elements - steel bending - bricklaying and stone setting - erecting and dismantling of scaffolds and work platforms including rental of scaffolds and work platforms - erection of chimneys and industrial ovens This four-digit level excludes the following - rental of scaffolds without erecting and dismantling comp 7132

45250000 45262000

453 Building installation 45300000

4531 Installation of electri-cal wiring and fittings

This four-digit level includes the installation in buildings or other

45213316 45310000

50

construction projects of - electrical wiring and fittings - telecommunications systems - electrical heating systems - residential antennas - fire alarms - burglar alarm systems - lifts and escalators - lightning conductors etc

Except 45316000

4532 Insulation work This four-digit level includes the following - installation in buildings or other construction projects of thermal sound or vibration insulation This four-digit level excludes the following - waterproofing comp 4522

45320000

4533 Plumbing This four-digit level includes the installation in buildings or other construction projects of the following - plumbing and sanitary equipment and fittings - gas fittings - heating ventilation refrigeration or air-conditioning equipment and ducts - sprinkler systems This four-digit level excludes the following - installation of electrical heating systems comp 4531

45330000

4534 Other installation work

This four-digit level includes the fol-lowing - installation or other construction of illumination and signalling systems for roads railways airports and harbours - installation in buildings or other construction projects of fittings and fixtures

45234115 45316000 45340000

454 Building completion 45400000

4541 Plastering This four-digit level includes the following - application in building or other construction projects of interior and exterior plaster or stucco and other similar lathing materials

45410000

4542 Joinery installation This four-digit level includes the following - installation of non-self-manufactured doors windows door

45420000

51

and window frames fitted kitchens staircases and shop fittings made of wood or other materials - completion of interiors such as ceilings wooden wall coverings wall paneling installation of movable partitions etc This four-digit level excludes the following - laying of parquet and other wooden floor coverings comp 4543

52

4543 Floor covering and wall upholstery

This four-digit level includes the following - covering or tiling of buildings or other structures using - ceramic concrete or stone wall or floor tiles or stones - parquet or other wooden floor covering - wall-to-wall carpeting or linoleum also rubber or plastic floor covering - wall or floor covering made of mosaic marble granite or slate - wallpaper

45430000

4544 Painting and glazing This four-digit level includes the following - interior and exterior painting of buildings - exterior painting of other structures - installation of mirrors glass etc This four-digit level excludes the following - installation of windows comp 4542

45440000

4545 Other building completion

This four-digit level includes the following - construction of private swimming pools - cleaning the exterior surfaces of buildings using steam sandblasting or other similar method - other building completion work not classified elsewhere This four-digit level excludes the following - cleaning of buildings and other structures comp 7470

45212212 and DA03 45450000

455 Rental of construction or dismantling equip-ment with operators

45500000

4550 Rental of construction or dismantling equip-ment with operators

This four-digit level excludes the following - rental of construction or dismantling machines and equipment without operators comp 7132

45500000

45

ANNEX A

Primary services

Group No

Matter CPV Reference No

1 Maintenance and repair services 50000000-5 50100000-6-50884000-4 (except 50310000-1-50324200-4 and 50116510-9 50190000-3 50229000-6 50243000-0) and 51000000-9-51900000-1

2 Services related to international military assistance

75211300-1

3 Defence services military defence services and civil defence services

75220000-4 75221000-1 75222000-8

4 Investigation and security services 79700000-1-79720000-7

5 Land transport services 60000000-8 60100000-9-60183000-4 (except 60160000-7 60161000-4) and 64120000-3-64121200-2

6 Air transport services for passengers and freight except transport of mail

60400000-2 60410000-5-60424120-3 (except 60411000-2 60421000-5) 60440000-4-60445000-9 and 60500000-3

7 Transport of mail by land and by air 60160000-7 60161000-4 60411000-2 60421000-5

8 Railway transport services 60200000-0-60220000-6

9 Sea transport services 60600000-4-60653000-0 and 63727000-1-63727200-3

10 Support and auxiliary transport services 63100000-0-63111000-0 63120000-6-63121100-4 63122000-0 63512000-1 and 63520000-0-6370000-6

11 Telecommunications services 64200000-8-64228200-2 72318000-7 and 72700000-7-72720000-3

12 Financial services insurance services 66500000-5-66720000-3

13 Data-processing and related services 50310000-1-50324200-4 72000000-5-72920000-5 (except 72318000-7 and 72700000-7-72720000-3) 79342410-4 9342410-4

14 Research and development services(sup1) and evaluation tests

73000000-2-73436000-7

15 Accounting auditing and bookkeeping services

79210000-9-79212500-8

16 Management consulting(sup2) and related services

73200000-4-73220000-0 79400000-8-79421200-3 and 79342000-3 79342100-4 79342300-6 79342320-2 79342321-9 79910000-6 79991000-7 98362000-8

17 Architectural services engineering services and integrated engineering services urban planning and landscape architectural services related scientific and technical consulting services technical testing and analysis services

71000000-8-71900000-7(except 71550000-8) and 79994000-8

18 Building cleaning services and building and property management services

70300000-4-70340000-0 and 90900000-6-90924000-3

19 Sewage and refuse disposal services 90400000-1 to 90743200-9 (except 90712200-3)

46

sanitation and similar services 90910000-9-90920000-2 and 50190000-3 50229000-6 50243000-0

20 Training and simulation services in the fields of defence and security

80330000-6 80600000-0 80610000-3 80620000-6 80630000-9 80640000-2 80650000-5 80660000-8

(sup1) Except the research and development services referred to in Section 13(2)(5) (sup2) Except arbitration and conciliation services ANNEX B Secondary services

Group No

Matter CPV Reference No

21 Hotel and restaurant services 55100000-1-55524000-9 and 98340000-8-98341100-6

22 Support and auxiliary transport services 63000000-9-63734000-3 (except 63711200-8 63712700-0 63712710-3) 6372700-1-63727200-3 and 98361000-1

23 Legal services 79100000-5-79140000-7

24 Employment and personnel recruitment services(sup1)

79600000-0-79635000-4 (except 79611000-0 79632000-3 79633000-0) and 98500000-8-98514000-9

25 Health and social services 79611000-085000000-9 and -85323000-9 (except 85321000-5 and 85322000-2)

26 Other services

(sup1) Except employment contracts

47

ANNEX C NACEsup1ordm

Main category F CONSTRUCTION CPV code

2-digit level

3-digit level

4-digit level

Description Comments

45 Construction This two-digit level includes the following construction of new buildings and works reconstruction and common repairs

45000000

451 Site preparation

45100000

4511 Demolition and wreck-ing of buildings earth moving

This four-digit level includes the following - demolition of buildings and other structures - clearing of building sites and earth moving site excavation landfill and levelling trench dig-ging quarrying blasting etc - site preparation for mining

- overburden removal and other development and prepa-ration of mines and mining sites

This four-digit level also includes - building site underdrainage - drainage of agricultural or forestry land

45110000

4512 Test drilling This four-digit level includes the following - test drilling test boring and sampling for construction geophysical geological or similar purposes This four-digit level excludes the following - drilling of oil or gas wells comp 1120 - water well drilling 4525

45120000

sup1deg Council regulation (EEC) No 303790 (Official Journal of the European Union 293 24 October 1990 p 1) on the statistical classification of economic activities in the European Community issued on 9 October 1990 regulation as amended by Commission Regulation (EEC) No 76193 (Official Journal of the European Union L 83 3 April 1993 p 1) If there are differences of opinion between CPV and NACE NACE nomenclature shall apply

48

- shaft sinking comp 4525 - oil and gas field exploration geophysical geological and seismic surveying comp 7420

452 Building complete constructions or parts thereof

45200000

4521 Building work This four-digit level includes the following - Construction of all types of buildings - civil engineering and hydraulic engineering works - building of bridges including those for elevated highways metro tunnels - construction of long-distance pipelines communication cables and long-distance networks for power lines - construction of long-distance pipelines telecommunication ca-bles and municipal network power lines related installation work - on-site assembly and erection of pre-fabricated constructions This four-digit level excludes the following - services related to oil and gas extraction comp 1120 - erection of complete prefabricat-ed constructions from self-manufactured parts not of con-crete comp 20 26 28 - construction work other than buildings for stadiums swimming pools gymnasiums tennis courts golf courses and other sports installations comp 4523 building installation comp 453 - building completion comp 454 - architectural and engineering services comp 7420 - project management for construction comp 7420

45210000 Except 45213316 45220000 45231000 45232000

4522 Erection and covering of roofs

This four-digit level includes the following - erection of roofs - roof covering - waterproofing

45261000

49

4523 Construction of highways streets airports and sports equipment

This four-digit level includes the following - construction of highways streets other vehicular and pedestrian ways - construction of railways - construction of airfield runways - construction work other than build-ings for stadiums swimming pools gymnasiums tennis courts golf courses and other sports installations - painting of markings on road surfaces and car parks This four-digit level excludes the following - preliminary earth moving comp 4511

45212212 and DA03 45230000 except 45231000 45232000 45234115

4524 Construction of water projects

This four-digit level includes the following building works - construction of waterways harbour and river works marinas locks etc - construction of dams and breakwaters - dredging - subsurface work

45240000

4525 Other construction work

This four-digit level includes the following - construction activities specialising in one aspect common to different kinds of structures requiring specialised skill or equipment - construction of foundations including pile driving - water well drilling and construction shaft sinking - erection of non-self-manufactured steel frame elements - steel bending - bricklaying and stone setting - erecting and dismantling of scaffolds and work platforms including rental of scaffolds and work platforms - erection of chimneys and industrial ovens This four-digit level excludes the following - rental of scaffolds without erecting and dismantling comp 7132

45250000 45262000

453 Building installation 45300000

4531 Installation of electri-cal wiring and fittings

This four-digit level includes the installation in buildings or other

45213316 45310000

50

construction projects of - electrical wiring and fittings - telecommunications systems - electrical heating systems - residential antennas - fire alarms - burglar alarm systems - lifts and escalators - lightning conductors etc

Except 45316000

4532 Insulation work This four-digit level includes the following - installation in buildings or other construction projects of thermal sound or vibration insulation This four-digit level excludes the following - waterproofing comp 4522

45320000

4533 Plumbing This four-digit level includes the installation in buildings or other construction projects of the following - plumbing and sanitary equipment and fittings - gas fittings - heating ventilation refrigeration or air-conditioning equipment and ducts - sprinkler systems This four-digit level excludes the following - installation of electrical heating systems comp 4531

45330000

4534 Other installation work

This four-digit level includes the fol-lowing - installation or other construction of illumination and signalling systems for roads railways airports and harbours - installation in buildings or other construction projects of fittings and fixtures

45234115 45316000 45340000

454 Building completion 45400000

4541 Plastering This four-digit level includes the following - application in building or other construction projects of interior and exterior plaster or stucco and other similar lathing materials

45410000

4542 Joinery installation This four-digit level includes the following - installation of non-self-manufactured doors windows door

45420000

51

and window frames fitted kitchens staircases and shop fittings made of wood or other materials - completion of interiors such as ceilings wooden wall coverings wall paneling installation of movable partitions etc This four-digit level excludes the following - laying of parquet and other wooden floor coverings comp 4543

52

4543 Floor covering and wall upholstery

This four-digit level includes the following - covering or tiling of buildings or other structures using - ceramic concrete or stone wall or floor tiles or stones - parquet or other wooden floor covering - wall-to-wall carpeting or linoleum also rubber or plastic floor covering - wall or floor covering made of mosaic marble granite or slate - wallpaper

45430000

4544 Painting and glazing This four-digit level includes the following - interior and exterior painting of buildings - exterior painting of other structures - installation of mirrors glass etc This four-digit level excludes the following - installation of windows comp 4542

45440000

4545 Other building completion

This four-digit level includes the following - construction of private swimming pools - cleaning the exterior surfaces of buildings using steam sandblasting or other similar method - other building completion work not classified elsewhere This four-digit level excludes the following - cleaning of buildings and other structures comp 7470

45212212 and DA03 45450000

455 Rental of construction or dismantling equip-ment with operators

45500000

4550 Rental of construction or dismantling equip-ment with operators

This four-digit level excludes the following - rental of construction or dismantling machines and equipment without operators comp 7132

45500000

46

sanitation and similar services 90910000-9-90920000-2 and 50190000-3 50229000-6 50243000-0

20 Training and simulation services in the fields of defence and security

80330000-6 80600000-0 80610000-3 80620000-6 80630000-9 80640000-2 80650000-5 80660000-8

(sup1) Except the research and development services referred to in Section 13(2)(5) (sup2) Except arbitration and conciliation services ANNEX B Secondary services

Group No

Matter CPV Reference No

21 Hotel and restaurant services 55100000-1-55524000-9 and 98340000-8-98341100-6

22 Support and auxiliary transport services 63000000-9-63734000-3 (except 63711200-8 63712700-0 63712710-3) 6372700-1-63727200-3 and 98361000-1

23 Legal services 79100000-5-79140000-7

24 Employment and personnel recruitment services(sup1)

79600000-0-79635000-4 (except 79611000-0 79632000-3 79633000-0) and 98500000-8-98514000-9

25 Health and social services 79611000-085000000-9 and -85323000-9 (except 85321000-5 and 85322000-2)

26 Other services

(sup1) Except employment contracts

47

ANNEX C NACEsup1ordm

Main category F CONSTRUCTION CPV code

2-digit level

3-digit level

4-digit level

Description Comments

45 Construction This two-digit level includes the following construction of new buildings and works reconstruction and common repairs

45000000

451 Site preparation

45100000

4511 Demolition and wreck-ing of buildings earth moving

This four-digit level includes the following - demolition of buildings and other structures - clearing of building sites and earth moving site excavation landfill and levelling trench dig-ging quarrying blasting etc - site preparation for mining

- overburden removal and other development and prepa-ration of mines and mining sites

This four-digit level also includes - building site underdrainage - drainage of agricultural or forestry land

45110000

4512 Test drilling This four-digit level includes the following - test drilling test boring and sampling for construction geophysical geological or similar purposes This four-digit level excludes the following - drilling of oil or gas wells comp 1120 - water well drilling 4525

45120000

sup1deg Council regulation (EEC) No 303790 (Official Journal of the European Union 293 24 October 1990 p 1) on the statistical classification of economic activities in the European Community issued on 9 October 1990 regulation as amended by Commission Regulation (EEC) No 76193 (Official Journal of the European Union L 83 3 April 1993 p 1) If there are differences of opinion between CPV and NACE NACE nomenclature shall apply

48

- shaft sinking comp 4525 - oil and gas field exploration geophysical geological and seismic surveying comp 7420

452 Building complete constructions or parts thereof

45200000

4521 Building work This four-digit level includes the following - Construction of all types of buildings - civil engineering and hydraulic engineering works - building of bridges including those for elevated highways metro tunnels - construction of long-distance pipelines communication cables and long-distance networks for power lines - construction of long-distance pipelines telecommunication ca-bles and municipal network power lines related installation work - on-site assembly and erection of pre-fabricated constructions This four-digit level excludes the following - services related to oil and gas extraction comp 1120 - erection of complete prefabricat-ed constructions from self-manufactured parts not of con-crete comp 20 26 28 - construction work other than buildings for stadiums swimming pools gymnasiums tennis courts golf courses and other sports installations comp 4523 building installation comp 453 - building completion comp 454 - architectural and engineering services comp 7420 - project management for construction comp 7420

45210000 Except 45213316 45220000 45231000 45232000

4522 Erection and covering of roofs

This four-digit level includes the following - erection of roofs - roof covering - waterproofing

45261000

49

4523 Construction of highways streets airports and sports equipment

This four-digit level includes the following - construction of highways streets other vehicular and pedestrian ways - construction of railways - construction of airfield runways - construction work other than build-ings for stadiums swimming pools gymnasiums tennis courts golf courses and other sports installations - painting of markings on road surfaces and car parks This four-digit level excludes the following - preliminary earth moving comp 4511

45212212 and DA03 45230000 except 45231000 45232000 45234115

4524 Construction of water projects

This four-digit level includes the following building works - construction of waterways harbour and river works marinas locks etc - construction of dams and breakwaters - dredging - subsurface work

45240000

4525 Other construction work

This four-digit level includes the following - construction activities specialising in one aspect common to different kinds of structures requiring specialised skill or equipment - construction of foundations including pile driving - water well drilling and construction shaft sinking - erection of non-self-manufactured steel frame elements - steel bending - bricklaying and stone setting - erecting and dismantling of scaffolds and work platforms including rental of scaffolds and work platforms - erection of chimneys and industrial ovens This four-digit level excludes the following - rental of scaffolds without erecting and dismantling comp 7132

45250000 45262000

453 Building installation 45300000

4531 Installation of electri-cal wiring and fittings

This four-digit level includes the installation in buildings or other

45213316 45310000

50

construction projects of - electrical wiring and fittings - telecommunications systems - electrical heating systems - residential antennas - fire alarms - burglar alarm systems - lifts and escalators - lightning conductors etc

Except 45316000

4532 Insulation work This four-digit level includes the following - installation in buildings or other construction projects of thermal sound or vibration insulation This four-digit level excludes the following - waterproofing comp 4522

45320000

4533 Plumbing This four-digit level includes the installation in buildings or other construction projects of the following - plumbing and sanitary equipment and fittings - gas fittings - heating ventilation refrigeration or air-conditioning equipment and ducts - sprinkler systems This four-digit level excludes the following - installation of electrical heating systems comp 4531

45330000

4534 Other installation work

This four-digit level includes the fol-lowing - installation or other construction of illumination and signalling systems for roads railways airports and harbours - installation in buildings or other construction projects of fittings and fixtures

45234115 45316000 45340000

454 Building completion 45400000

4541 Plastering This four-digit level includes the following - application in building or other construction projects of interior and exterior plaster or stucco and other similar lathing materials

45410000

4542 Joinery installation This four-digit level includes the following - installation of non-self-manufactured doors windows door

45420000

51

and window frames fitted kitchens staircases and shop fittings made of wood or other materials - completion of interiors such as ceilings wooden wall coverings wall paneling installation of movable partitions etc This four-digit level excludes the following - laying of parquet and other wooden floor coverings comp 4543

52

4543 Floor covering and wall upholstery

This four-digit level includes the following - covering or tiling of buildings or other structures using - ceramic concrete or stone wall or floor tiles or stones - parquet or other wooden floor covering - wall-to-wall carpeting or linoleum also rubber or plastic floor covering - wall or floor covering made of mosaic marble granite or slate - wallpaper

45430000

4544 Painting and glazing This four-digit level includes the following - interior and exterior painting of buildings - exterior painting of other structures - installation of mirrors glass etc This four-digit level excludes the following - installation of windows comp 4542

45440000

4545 Other building completion

This four-digit level includes the following - construction of private swimming pools - cleaning the exterior surfaces of buildings using steam sandblasting or other similar method - other building completion work not classified elsewhere This four-digit level excludes the following - cleaning of buildings and other structures comp 7470

45212212 and DA03 45450000

455 Rental of construction or dismantling equip-ment with operators

45500000

4550 Rental of construction or dismantling equip-ment with operators

This four-digit level excludes the following - rental of construction or dismantling machines and equipment without operators comp 7132

45500000

47

ANNEX C NACEsup1ordm

Main category F CONSTRUCTION CPV code

2-digit level

3-digit level

4-digit level

Description Comments

45 Construction This two-digit level includes the following construction of new buildings and works reconstruction and common repairs

45000000

451 Site preparation

45100000

4511 Demolition and wreck-ing of buildings earth moving

This four-digit level includes the following - demolition of buildings and other structures - clearing of building sites and earth moving site excavation landfill and levelling trench dig-ging quarrying blasting etc - site preparation for mining

- overburden removal and other development and prepa-ration of mines and mining sites

This four-digit level also includes - building site underdrainage - drainage of agricultural or forestry land

45110000

4512 Test drilling This four-digit level includes the following - test drilling test boring and sampling for construction geophysical geological or similar purposes This four-digit level excludes the following - drilling of oil or gas wells comp 1120 - water well drilling 4525

45120000

sup1deg Council regulation (EEC) No 303790 (Official Journal of the European Union 293 24 October 1990 p 1) on the statistical classification of economic activities in the European Community issued on 9 October 1990 regulation as amended by Commission Regulation (EEC) No 76193 (Official Journal of the European Union L 83 3 April 1993 p 1) If there are differences of opinion between CPV and NACE NACE nomenclature shall apply

48

- shaft sinking comp 4525 - oil and gas field exploration geophysical geological and seismic surveying comp 7420

452 Building complete constructions or parts thereof

45200000

4521 Building work This four-digit level includes the following - Construction of all types of buildings - civil engineering and hydraulic engineering works - building of bridges including those for elevated highways metro tunnels - construction of long-distance pipelines communication cables and long-distance networks for power lines - construction of long-distance pipelines telecommunication ca-bles and municipal network power lines related installation work - on-site assembly and erection of pre-fabricated constructions This four-digit level excludes the following - services related to oil and gas extraction comp 1120 - erection of complete prefabricat-ed constructions from self-manufactured parts not of con-crete comp 20 26 28 - construction work other than buildings for stadiums swimming pools gymnasiums tennis courts golf courses and other sports installations comp 4523 building installation comp 453 - building completion comp 454 - architectural and engineering services comp 7420 - project management for construction comp 7420

45210000 Except 45213316 45220000 45231000 45232000

4522 Erection and covering of roofs

This four-digit level includes the following - erection of roofs - roof covering - waterproofing

45261000

49

4523 Construction of highways streets airports and sports equipment

This four-digit level includes the following - construction of highways streets other vehicular and pedestrian ways - construction of railways - construction of airfield runways - construction work other than build-ings for stadiums swimming pools gymnasiums tennis courts golf courses and other sports installations - painting of markings on road surfaces and car parks This four-digit level excludes the following - preliminary earth moving comp 4511

45212212 and DA03 45230000 except 45231000 45232000 45234115

4524 Construction of water projects

This four-digit level includes the following building works - construction of waterways harbour and river works marinas locks etc - construction of dams and breakwaters - dredging - subsurface work

45240000

4525 Other construction work

This four-digit level includes the following - construction activities specialising in one aspect common to different kinds of structures requiring specialised skill or equipment - construction of foundations including pile driving - water well drilling and construction shaft sinking - erection of non-self-manufactured steel frame elements - steel bending - bricklaying and stone setting - erecting and dismantling of scaffolds and work platforms including rental of scaffolds and work platforms - erection of chimneys and industrial ovens This four-digit level excludes the following - rental of scaffolds without erecting and dismantling comp 7132

45250000 45262000

453 Building installation 45300000

4531 Installation of electri-cal wiring and fittings

This four-digit level includes the installation in buildings or other

45213316 45310000

50

construction projects of - electrical wiring and fittings - telecommunications systems - electrical heating systems - residential antennas - fire alarms - burglar alarm systems - lifts and escalators - lightning conductors etc

Except 45316000

4532 Insulation work This four-digit level includes the following - installation in buildings or other construction projects of thermal sound or vibration insulation This four-digit level excludes the following - waterproofing comp 4522

45320000

4533 Plumbing This four-digit level includes the installation in buildings or other construction projects of the following - plumbing and sanitary equipment and fittings - gas fittings - heating ventilation refrigeration or air-conditioning equipment and ducts - sprinkler systems This four-digit level excludes the following - installation of electrical heating systems comp 4531

45330000

4534 Other installation work

This four-digit level includes the fol-lowing - installation or other construction of illumination and signalling systems for roads railways airports and harbours - installation in buildings or other construction projects of fittings and fixtures

45234115 45316000 45340000

454 Building completion 45400000

4541 Plastering This four-digit level includes the following - application in building or other construction projects of interior and exterior plaster or stucco and other similar lathing materials

45410000

4542 Joinery installation This four-digit level includes the following - installation of non-self-manufactured doors windows door

45420000

51

and window frames fitted kitchens staircases and shop fittings made of wood or other materials - completion of interiors such as ceilings wooden wall coverings wall paneling installation of movable partitions etc This four-digit level excludes the following - laying of parquet and other wooden floor coverings comp 4543

52

4543 Floor covering and wall upholstery

This four-digit level includes the following - covering or tiling of buildings or other structures using - ceramic concrete or stone wall or floor tiles or stones - parquet or other wooden floor covering - wall-to-wall carpeting or linoleum also rubber or plastic floor covering - wall or floor covering made of mosaic marble granite or slate - wallpaper

45430000

4544 Painting and glazing This four-digit level includes the following - interior and exterior painting of buildings - exterior painting of other structures - installation of mirrors glass etc This four-digit level excludes the following - installation of windows comp 4542

45440000

4545 Other building completion

This four-digit level includes the following - construction of private swimming pools - cleaning the exterior surfaces of buildings using steam sandblasting or other similar method - other building completion work not classified elsewhere This four-digit level excludes the following - cleaning of buildings and other structures comp 7470

45212212 and DA03 45450000

455 Rental of construction or dismantling equip-ment with operators

45500000

4550 Rental of construction or dismantling equip-ment with operators

This four-digit level excludes the following - rental of construction or dismantling machines and equipment without operators comp 7132

45500000

48

- shaft sinking comp 4525 - oil and gas field exploration geophysical geological and seismic surveying comp 7420

452 Building complete constructions or parts thereof

45200000

4521 Building work This four-digit level includes the following - Construction of all types of buildings - civil engineering and hydraulic engineering works - building of bridges including those for elevated highways metro tunnels - construction of long-distance pipelines communication cables and long-distance networks for power lines - construction of long-distance pipelines telecommunication ca-bles and municipal network power lines related installation work - on-site assembly and erection of pre-fabricated constructions This four-digit level excludes the following - services related to oil and gas extraction comp 1120 - erection of complete prefabricat-ed constructions from self-manufactured parts not of con-crete comp 20 26 28 - construction work other than buildings for stadiums swimming pools gymnasiums tennis courts golf courses and other sports installations comp 4523 building installation comp 453 - building completion comp 454 - architectural and engineering services comp 7420 - project management for construction comp 7420

45210000 Except 45213316 45220000 45231000 45232000

4522 Erection and covering of roofs

This four-digit level includes the following - erection of roofs - roof covering - waterproofing

45261000

49

4523 Construction of highways streets airports and sports equipment

This four-digit level includes the following - construction of highways streets other vehicular and pedestrian ways - construction of railways - construction of airfield runways - construction work other than build-ings for stadiums swimming pools gymnasiums tennis courts golf courses and other sports installations - painting of markings on road surfaces and car parks This four-digit level excludes the following - preliminary earth moving comp 4511

45212212 and DA03 45230000 except 45231000 45232000 45234115

4524 Construction of water projects

This four-digit level includes the following building works - construction of waterways harbour and river works marinas locks etc - construction of dams and breakwaters - dredging - subsurface work

45240000

4525 Other construction work

This four-digit level includes the following - construction activities specialising in one aspect common to different kinds of structures requiring specialised skill or equipment - construction of foundations including pile driving - water well drilling and construction shaft sinking - erection of non-self-manufactured steel frame elements - steel bending - bricklaying and stone setting - erecting and dismantling of scaffolds and work platforms including rental of scaffolds and work platforms - erection of chimneys and industrial ovens This four-digit level excludes the following - rental of scaffolds without erecting and dismantling comp 7132

45250000 45262000

453 Building installation 45300000

4531 Installation of electri-cal wiring and fittings

This four-digit level includes the installation in buildings or other

45213316 45310000

50

construction projects of - electrical wiring and fittings - telecommunications systems - electrical heating systems - residential antennas - fire alarms - burglar alarm systems - lifts and escalators - lightning conductors etc

Except 45316000

4532 Insulation work This four-digit level includes the following - installation in buildings or other construction projects of thermal sound or vibration insulation This four-digit level excludes the following - waterproofing comp 4522

45320000

4533 Plumbing This four-digit level includes the installation in buildings or other construction projects of the following - plumbing and sanitary equipment and fittings - gas fittings - heating ventilation refrigeration or air-conditioning equipment and ducts - sprinkler systems This four-digit level excludes the following - installation of electrical heating systems comp 4531

45330000

4534 Other installation work

This four-digit level includes the fol-lowing - installation or other construction of illumination and signalling systems for roads railways airports and harbours - installation in buildings or other construction projects of fittings and fixtures

45234115 45316000 45340000

454 Building completion 45400000

4541 Plastering This four-digit level includes the following - application in building or other construction projects of interior and exterior plaster or stucco and other similar lathing materials

45410000

4542 Joinery installation This four-digit level includes the following - installation of non-self-manufactured doors windows door

45420000

51

and window frames fitted kitchens staircases and shop fittings made of wood or other materials - completion of interiors such as ceilings wooden wall coverings wall paneling installation of movable partitions etc This four-digit level excludes the following - laying of parquet and other wooden floor coverings comp 4543

52

4543 Floor covering and wall upholstery

This four-digit level includes the following - covering or tiling of buildings or other structures using - ceramic concrete or stone wall or floor tiles or stones - parquet or other wooden floor covering - wall-to-wall carpeting or linoleum also rubber or plastic floor covering - wall or floor covering made of mosaic marble granite or slate - wallpaper

45430000

4544 Painting and glazing This four-digit level includes the following - interior and exterior painting of buildings - exterior painting of other structures - installation of mirrors glass etc This four-digit level excludes the following - installation of windows comp 4542

45440000

4545 Other building completion

This four-digit level includes the following - construction of private swimming pools - cleaning the exterior surfaces of buildings using steam sandblasting or other similar method - other building completion work not classified elsewhere This four-digit level excludes the following - cleaning of buildings and other structures comp 7470

45212212 and DA03 45450000

455 Rental of construction or dismantling equip-ment with operators

45500000

4550 Rental of construction or dismantling equip-ment with operators

This four-digit level excludes the following - rental of construction or dismantling machines and equipment without operators comp 7132

45500000

49

4523 Construction of highways streets airports and sports equipment

This four-digit level includes the following - construction of highways streets other vehicular and pedestrian ways - construction of railways - construction of airfield runways - construction work other than build-ings for stadiums swimming pools gymnasiums tennis courts golf courses and other sports installations - painting of markings on road surfaces and car parks This four-digit level excludes the following - preliminary earth moving comp 4511

45212212 and DA03 45230000 except 45231000 45232000 45234115

4524 Construction of water projects

This four-digit level includes the following building works - construction of waterways harbour and river works marinas locks etc - construction of dams and breakwaters - dredging - subsurface work

45240000

4525 Other construction work

This four-digit level includes the following - construction activities specialising in one aspect common to different kinds of structures requiring specialised skill or equipment - construction of foundations including pile driving - water well drilling and construction shaft sinking - erection of non-self-manufactured steel frame elements - steel bending - bricklaying and stone setting - erecting and dismantling of scaffolds and work platforms including rental of scaffolds and work platforms - erection of chimneys and industrial ovens This four-digit level excludes the following - rental of scaffolds without erecting and dismantling comp 7132

45250000 45262000

453 Building installation 45300000

4531 Installation of electri-cal wiring and fittings

This four-digit level includes the installation in buildings or other

45213316 45310000

50

construction projects of - electrical wiring and fittings - telecommunications systems - electrical heating systems - residential antennas - fire alarms - burglar alarm systems - lifts and escalators - lightning conductors etc

Except 45316000

4532 Insulation work This four-digit level includes the following - installation in buildings or other construction projects of thermal sound or vibration insulation This four-digit level excludes the following - waterproofing comp 4522

45320000

4533 Plumbing This four-digit level includes the installation in buildings or other construction projects of the following - plumbing and sanitary equipment and fittings - gas fittings - heating ventilation refrigeration or air-conditioning equipment and ducts - sprinkler systems This four-digit level excludes the following - installation of electrical heating systems comp 4531

45330000

4534 Other installation work

This four-digit level includes the fol-lowing - installation or other construction of illumination and signalling systems for roads railways airports and harbours - installation in buildings or other construction projects of fittings and fixtures

45234115 45316000 45340000

454 Building completion 45400000

4541 Plastering This four-digit level includes the following - application in building or other construction projects of interior and exterior plaster or stucco and other similar lathing materials

45410000

4542 Joinery installation This four-digit level includes the following - installation of non-self-manufactured doors windows door

45420000

51

and window frames fitted kitchens staircases and shop fittings made of wood or other materials - completion of interiors such as ceilings wooden wall coverings wall paneling installation of movable partitions etc This four-digit level excludes the following - laying of parquet and other wooden floor coverings comp 4543

52

4543 Floor covering and wall upholstery

This four-digit level includes the following - covering or tiling of buildings or other structures using - ceramic concrete or stone wall or floor tiles or stones - parquet or other wooden floor covering - wall-to-wall carpeting or linoleum also rubber or plastic floor covering - wall or floor covering made of mosaic marble granite or slate - wallpaper

45430000

4544 Painting and glazing This four-digit level includes the following - interior and exterior painting of buildings - exterior painting of other structures - installation of mirrors glass etc This four-digit level excludes the following - installation of windows comp 4542

45440000

4545 Other building completion

This four-digit level includes the following - construction of private swimming pools - cleaning the exterior surfaces of buildings using steam sandblasting or other similar method - other building completion work not classified elsewhere This four-digit level excludes the following - cleaning of buildings and other structures comp 7470

45212212 and DA03 45450000

455 Rental of construction or dismantling equip-ment with operators

45500000

4550 Rental of construction or dismantling equip-ment with operators

This four-digit level excludes the following - rental of construction or dismantling machines and equipment without operators comp 7132

45500000

50

construction projects of - electrical wiring and fittings - telecommunications systems - electrical heating systems - residential antennas - fire alarms - burglar alarm systems - lifts and escalators - lightning conductors etc

Except 45316000

4532 Insulation work This four-digit level includes the following - installation in buildings or other construction projects of thermal sound or vibration insulation This four-digit level excludes the following - waterproofing comp 4522

45320000

4533 Plumbing This four-digit level includes the installation in buildings or other construction projects of the following - plumbing and sanitary equipment and fittings - gas fittings - heating ventilation refrigeration or air-conditioning equipment and ducts - sprinkler systems This four-digit level excludes the following - installation of electrical heating systems comp 4531

45330000

4534 Other installation work

This four-digit level includes the fol-lowing - installation or other construction of illumination and signalling systems for roads railways airports and harbours - installation in buildings or other construction projects of fittings and fixtures

45234115 45316000 45340000

454 Building completion 45400000

4541 Plastering This four-digit level includes the following - application in building or other construction projects of interior and exterior plaster or stucco and other similar lathing materials

45410000

4542 Joinery installation This four-digit level includes the following - installation of non-self-manufactured doors windows door

45420000

51

and window frames fitted kitchens staircases and shop fittings made of wood or other materials - completion of interiors such as ceilings wooden wall coverings wall paneling installation of movable partitions etc This four-digit level excludes the following - laying of parquet and other wooden floor coverings comp 4543

52

4543 Floor covering and wall upholstery

This four-digit level includes the following - covering or tiling of buildings or other structures using - ceramic concrete or stone wall or floor tiles or stones - parquet or other wooden floor covering - wall-to-wall carpeting or linoleum also rubber or plastic floor covering - wall or floor covering made of mosaic marble granite or slate - wallpaper

45430000

4544 Painting and glazing This four-digit level includes the following - interior and exterior painting of buildings - exterior painting of other structures - installation of mirrors glass etc This four-digit level excludes the following - installation of windows comp 4542

45440000

4545 Other building completion

This four-digit level includes the following - construction of private swimming pools - cleaning the exterior surfaces of buildings using steam sandblasting or other similar method - other building completion work not classified elsewhere This four-digit level excludes the following - cleaning of buildings and other structures comp 7470

45212212 and DA03 45450000

455 Rental of construction or dismantling equip-ment with operators

45500000

4550 Rental of construction or dismantling equip-ment with operators

This four-digit level excludes the following - rental of construction or dismantling machines and equipment without operators comp 7132

45500000

51

and window frames fitted kitchens staircases and shop fittings made of wood or other materials - completion of interiors such as ceilings wooden wall coverings wall paneling installation of movable partitions etc This four-digit level excludes the following - laying of parquet and other wooden floor coverings comp 4543

52

4543 Floor covering and wall upholstery

This four-digit level includes the following - covering or tiling of buildings or other structures using - ceramic concrete or stone wall or floor tiles or stones - parquet or other wooden floor covering - wall-to-wall carpeting or linoleum also rubber or plastic floor covering - wall or floor covering made of mosaic marble granite or slate - wallpaper

45430000

4544 Painting and glazing This four-digit level includes the following - interior and exterior painting of buildings - exterior painting of other structures - installation of mirrors glass etc This four-digit level excludes the following - installation of windows comp 4542

45440000

4545 Other building completion

This four-digit level includes the following - construction of private swimming pools - cleaning the exterior surfaces of buildings using steam sandblasting or other similar method - other building completion work not classified elsewhere This four-digit level excludes the following - cleaning of buildings and other structures comp 7470

45212212 and DA03 45450000

455 Rental of construction or dismantling equip-ment with operators

45500000

4550 Rental of construction or dismantling equip-ment with operators

This four-digit level excludes the following - rental of construction or dismantling machines and equipment without operators comp 7132

45500000

52

4543 Floor covering and wall upholstery

This four-digit level includes the following - covering or tiling of buildings or other structures using - ceramic concrete or stone wall or floor tiles or stones - parquet or other wooden floor covering - wall-to-wall carpeting or linoleum also rubber or plastic floor covering - wall or floor covering made of mosaic marble granite or slate - wallpaper

45430000

4544 Painting and glazing This four-digit level includes the following - interior and exterior painting of buildings - exterior painting of other structures - installation of mirrors glass etc This four-digit level excludes the following - installation of windows comp 4542

45440000

4545 Other building completion

This four-digit level includes the following - construction of private swimming pools - cleaning the exterior surfaces of buildings using steam sandblasting or other similar method - other building completion work not classified elsewhere This four-digit level excludes the following - cleaning of buildings and other structures comp 7470

45212212 and DA03 45450000

455 Rental of construction or dismantling equip-ment with operators

45500000

4550 Rental of construction or dismantling equip-ment with operators

This four-digit level excludes the following - rental of construction or dismantling machines and equipment without operators comp 7132

45500000