The text below is kindly provided by
Djingov, Gouginski, Kyutchukov & Velichkov
The public procurement procedures applicable in Bulgaria are equivalent to the EU rules since the governing Law on Public Procurement (the “LPP”) effective as of October 1, 2004 implements on national level Directive 2004/17/EC and Directive 2004/18/EC. The LPP aims to ensure efficiency in spending of budget and extrabudget resources, as well as of resources associated with carrying out of relevant public activities specified in the law. The LPP has further introduced the principles of publicity and transparency, free and fair competition and equal treatment and non-discrimination.
Depending of the subject matter of the public procurements the LLP determines the objects of the public procurements, namely (i) supply of goods performed by means of purchase, lease, rental with or without option for purchase or purchase by installments, as well as all preliminary operations necessary for use of the goods, such as installation, testing, etc.; (ii) service procurement, and (iii) construction, including design and construction of building sites, reconstruction, maintenance, restoration or rehabilitation of buildings or construction facilities, integrated engineering services, etc.
In accordance with the LLP parties to public procurement award procedures shall be the contracting authorities, the candidates, the participants and the contractors. Contracting authorities under the LLP are (i) the state authorities, the President of the Republic of Bulgaria, the Bulgarian National Bank, and other state institutions; (ii) the diplomatic consular delegations of the Republic of Bulgaria abroad, as well as the permanent missions of the Republic of Bulgaria to the international organizations; (iii) the public law organizations; (iv) combinations formed by the parties referred to in item (i) or (iii); (v) public undertakings and any combinations thereof, where carrying out certain activities; (vi) merchants and other persons which are not public undertakings, where carrying out certain activities. A candidate or participant in a public procurement procedure may be any Bulgarian or foreign individual or legal entity, as well as any partnership thereof, whereas a public procurement contractor shall be a participant in a public procurement award procedure whereunder the contracting authority has concluded a public procurement contract.
The different types of public procurement procedures regulated by the LPP include: (a) open procedure, (b) restricted procedure; (c) direct negotiation procedure, (d) competitive dialogue and (e) project tender. An open procedure is a procedure whereby all interested parties may submit an offer, where under the conditions of a restricted procedure only qualifying candidates invited by the contracting authority may submit an offer. These two procedures are used if the conditions for conducting competitive dialogue or negotiations procedure are not present, whereas the choice between the open and restricted procedure is a matter of discretion of the contracting authority. The negotiations procedures include: (i) a negotiations procedure with prior publication of a contract notice, whereby the contracting authority negotiates the terms of the contract with one or more qualifying candidates after conduct of a pre-selection procedure; and (ii) a negotiations procedure without prior publication of a contract notice, whereby the contracting authority negotiates the terms of the contract with one or more particular persons. Under the competitive dialogue procedure, which is used if the subject matter of the assignment is complex, any interested party may submit a declaration of intent; then further to a dialogue with qualified parties (i.e. complying with the initially announced requirements) the contracting authority nominates one or more of the candidates, who are invited to submit final offers. A project tender shall be a procedure whereby the contracting authority acquires a plan or design selected by an independent jury on the grounds of a tender conducted with or without award of prizes.
The threshold triggering the applicability of the public procurement regime is contract value excluding VAT at the following amounts: (i) in respect of construction: not less than BGN 2,150,000 and, where the place of performance of the procurement is outside Bulgaria, not less than BGN 6,000,000; (ii) in respect of supplies: not less than BGN 180,000 and, where the place of performance of the procurement is outside Bulgaria, not less than BGN 250,000; (iii) in respect of services: not less than BGN 110,000 and, where the place of performance of the procurement is outside Bulgaria, not less than BGN 250,000; (iv) in respect of competition for project: not less than BGN 110,000.
Public procurements that relate to the national security or defence, as defied in the Treaty on Establishing of the European Community (Art. 296) or to classified information qualifying as state secret, or should be conducted under special security measures , are governed by the Special Public Procurement Regulation and not by the general regulations on conduct of public procurement procedures as provided for by the LLP.
A Public Procurement Registry is maintained by the Public Procurement Agency with the Minister of Economy,Energy and Tourism, where the decisions for initiation and termination of public procurement award procedures, the decisions for extending the terms for submission of tenders or participation, and information on public procurement awards as well as performed public procurement contracts, are entered.
The core steps in the organisation of public procurement procedures are as follows: (i) sending a prior indicative notice for publication on the website of State Gazette and to the Public Procurement Agency for entry into the Public Procurement Register of all public procurement contracts which the contracting authorities envisage to award during the next 12 months; (ii) opening of the public procurement procedure by means of a decision of the respective contracting authority, which approves the announcement for the public procurement procedure and the documentation for participation in the procedure; (iii) appointing of a committee by the contracting authority, which supervises and manages the public procurement procedure; (iv) submission of offers/requests for participation; (v) preliminary screening of the offers for compliance with the formal requirements or selection of qualified candidates in the cases of restricted and competitive dialogue procedures; (vi) assessment of the offers, ranking of the offers, and nomination of the winning candidate; (vii) negotiation and execution of the public procurement contract with the winning candidate within 1 month as of expiration of the deadline for appeal of the decision for nomination of the winning candidate or entry into force of the act for the repeal of the suspension requested; (viii) sending information by the contracting authority on each concluded public procurement contract to the Public Procurement Agency for entry into the Public Procurement Register as well as in some occasions sending certain documents and information by the contracting authority for publication into the Official Journal of the European Union.
Pursuant to the LLP where a public procurement procedure has not been followed (if mandatory) and an agreement has nevertheless been concluded, or the agreement has been concluded before expiration of the statutory term for filing of appeals against the decision on selection of the contractor or before the entry into effect of the ruling on the request for suspension of the procedure, any interested party may challenge the validity of the agreement and/or claim damages before the court. On the other hand, the competent authority to review claims for procedural irregularities in the public procurement procedure is the Competition Protection Commission.