Although the Bulgarian parliament adopted measures in the recently passed state-of-emergency law (Emergency Measures Act) to regulate major relationships during the current crisis, questions still remain in regard to public procurement.
How does the emergency legislation affect procedures?
There had been a legislative proposal that all public procurements be suspended during the state of emergency, but part of the business community protested. The proposal was not supported by the legal parliamentary committee and it was not adopted by parliament. Hence, no explicit regulation states that public procurement procedures will be automatically suspended.
Nevertheless, the Emergency Measures Act imposes certain suspensions, such as judicial and legislative terms, terms for performance of instructions of administrative bodies, and the prolongation of terms that are prescribed by law in relation to the exercise of certain rights or obligations. It is not entirely clear if and how these regulations apply to public procurement procedures. The Public Procurement Agency has announced on its website that it is reviewing the Emergency Measures Act and the business and contracting authorities are awaiting its official guidelines.
In the meantime, contracting authorities continue to open new procedures and so far there is no indication of an official suspension of procedures by contracting authorities due to COVID-19.
No application of the Public Procurement Act or simplified procedures
As per the Emergency Measures Act, the rules of the Public Procurement Act will not be applied during the state of emergency for procurements for certain medical supplies, including hygienic materials, medical supplies, equipment, disinfectants, and medical and laboratory equipment for treatment of infected patients and the special treatment of hospital refuse.
In addition, contracting authorities may opt to shorten the terms due to urgency or apply some simplified procedures. When there is urgency terms can be shortened as follows: (i) in open procedures: 15 days for submission of offers and (ii) in restricted procedures: 15 days for submission of applications for participation and 10 days for submission of offers after the invitation for offers. In limited cases, when there is urgent need for procurement due to extraordinary circumstances and when it is not possible to apply even the shortened-term procedures, contracting authorities can open negotiated procedures without notification or direct negotiation procedure as per art. 79, art. 4 and art. 182 of the Public Procurement Act. If a contracting authority decides to apply these procedures, it must issue a motivated decision elaborating on the extraordinary circumstances that prevent the application of normal procedures. The respective thresholds for application of the procedures will be also observed.
The negotiated procedure without notification can also be applied, if no offer was submitted in an open procedure and the same procedure was terminated after a reasoned decision by the contracting authority.
In addition, yesterday the European Commission issued guidance elaborating on the application of the simplified procedures during the COVID-19 crisis, reaffirming that they shall be used only as an exception and only until a more long-term solution is reached. To the extent that the application of the Public Procurement Act is excluded for some medical supplies for treatment of COVID-19 as per the Emergency Measures Act, our expectations are that the simplified procedures will be applied in limited cases.
Modifications of existing contracts in the context of the current situation
The Bulgarian Public Procurement Act is restrictive in terms of modification opportunities for existing contracts. Emergency legislation explicitly states, however, that the contractor can request from the contracting authority a prolongation of the term of the executed public procurement. The term for performance of the contract can be prolonged, but for no longer than the duration of the state of emergency.
For more information on participating in Bulgarian public procurements during the current crisis, contact your regular CMS advisor or local CMS experts:
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