The Emergency Measures Act promulgated on
28 March (Act) dealing with the consequences of COVID-19 was unclear on the
running of terms of public procurement procedures which are now active.
The Public Procurement Agency (Agency) managed
to give its opinion on the emergency legislation in the beginning of April.
The initial text of the Act provides that
starting 13 March 2020 until the end of the state of emergency, there will be a
suspension of the prescription and other terms associated with exercising
rights or arising of obligations set in the legislation. The same applies to
terms of performance of instructions given by an administrative body to
participants in procurement procedures. In addition, the Act provides for an
extension of terms set in the legislation and associated with exercising rights
and obligations, which expire during the term of the state of emergency. (The terms will be prolonged for one month after
the end of the state of emergency).
Since the original Act raised many
questions, lawmakers addressed the issue in an amendment to the emergency
legislation, which clarified that the prolonging of terms by one month at the end
of the state of emergency will not apply in public procurement and concession
procedures. There will also be no suspension of procedures and court
proceedings under the Public Procurement Act and the Concessions Act. These rules apply as of 17 April 2020.
After these amendments were made, the
Public Procurement Agency issued its guidance clarifying how the Emergency
Measures Act should be interpreted in terms of tender procedures.
The timing of the guidance left contracting
authorities with a month to apply the Act according to their discretion. The
Agency reports that many contracting authorities interpreted the Act
differently. Some deemed that the rules of the emergency legislation did not
apply to tender procedures and continued work as usual. Others announced new
procedures, but did not take any actions under them.
The orders of the Health Minister also complicated
the work of contracting authorities since they (as employers) were urged to
introduce work from home and social distancing. This made the holding of
procedures difficult where the presence of a tender committee was required.
In its guidance, the Agency deems that the
Emergency Measures Act applies to tender procedures and that actions under them
should have been suspended. At the same time, it recognises that many contracting
authorities applied different interpretations of the Act and continued with the
procedures as usual, which the Agency also considers valid.
According to the guidance, the Agency
approves of the following two approaches for dealing with procedures opened
after the start of the state of emergency:
· Where no actions have been
performed by the contracting authority: all terms under the procedure will start
from 17 April 2020 and the terms will be prolonged accordingly; and
· Where the contracting authority
started the procedure effectively and the actions are validly performed: when
the performed actions are associated with a term for their challenge, this term
will be renewed in full as of 17 April 2020.
The Public Procurement Agency has
cautioned that this is only a general guidance and does not cover all possible
scenarios. Furthermore, its opinion is not obligatory for the courts in case of
For more information, contact our local experts Denitsa Dudevska and Zornitsa Stoykova.