With effect from 25 July 2016, Hungarian law has changed regarding the calculation of references of past services and works for the proof of technical ability. The new rules apply to public procurement procedures initiated after 25 July 2016 and interestingly, also for ongoing public procurement procedures where the tender application deadline expires after 25 July 2016.

The new rules amend the rules how to calculate a bidder’s previous performance fulfilled as a consortium member in public procurement projects. The new law introduces a statutory limit, according to which it is possible to use such reference certificates only to a certain extent, equal to the ratio the bidder received from the compensation based on its performance. The limitation applies subject to the below conditions:

  • the earlier services or works that the bidder wishes to use as references for the proof of technical ability were fulfilled by the bidder together with other bidder(s); and
  • the services or works are not divisible and therefore separate references could not have been issued.

The law applies only to public works and services contracts. Supplies contracts are exempt from this rule.

For instance in relation to a previous public works tender, where one of the consortium members was only involved in 10% of the performance of the works, that this bidder may rely on the reference certificate to qualify in another tender up to 10% of the contract value billed by the consortium.

Before this modification entered into force, the contracting authorities were obliged to accept the whole value of the reference if the works and services were performed by the consortium under the joint liability of its members and the relevant bidder received at least 15 % of the consideration. Due to the modification, the rules have become stricter from the bidders’ point of view as it may be harder to collect the necessary references. From the contracting authorities’ perspective, however, such calculation duly reflects the bidders’ actual performance and experience and therefore, their qualification necessary for the performance of the contract may be examined more accurately.

Source of law: Government Decree No. 321/2015. (X. 30.).