Bulgaria issues new guidance on public procurement during the state of emergency

Bulgaria

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 disputes. 

For more information, contact our local experts Denitsa Dudevska and Zornitsa Stoykova.