What is public procurement in construction in Bulgaria?
Public procurement in construction is a special legal regime for the award of construction activities by public contracting entities through transparent and competitive procedures regulated in the Public Procurement Act (Public Procurement Act), in order to protect the public interest and effectively spend public funds. 🏗️
Historically, the original regulation is contained in the Law on Public and Municipal Procurement of 1997, which is the previous name of the Public Procurement Law in force today. This law regulated the award of contracts by state bodies and other entities of budgetary maintenance, which dispose of funds from the state budget, state funds and municipal budgets and funds. Purchases, transportation, rental, leasing, installation, maintenance, consulting and insurance services were assigned under it. However, it lacked basic principles such as equality, non-discrimination and free movement of goods, which led to its repeal in 1999.
In 1999, a new Law on Public Procurement was adopted, which for the first time introduced specific principles of procurement as well as a legal definition of a contracting authority. An Ordinance on keeping a register of public procurement was adopted to it, and for the first time a CPV code was introduced — a digital code for personalization of the subject of the procurement linked to a special register.
The Public Procurement Act 2004 was adopted in connection with the transposition of Directive 2004/18/EC on the coordination of public procurement procedures. An ordinance on the award of special public contracts has also been created to it. This framework also did not last long and in 2016 a new Law on Public Procurement was adopted, transposing six new directives and introducing a completely new procedure — “innovation partnership”. With it, the Ordinance on external experts in preliminary control was adopted. At the moment, the Public Procurement Act of 2018 is in force, which has been amended several times.
From the point of view of the legal concept, public procurement within the meaning of Art. 1, para. 2 of the Public Procurement Act constitutes the award and performance of a supply, service or construction by means of a written bilateral contract for consideration by a person under Art. 5 and Art. 7 of the Public Procurement Act, without transferring the operational or any to be another risk. According to the legal definition, a public procurement is the very acquisition of a good, service or construction.
In construction, this means that when a public authority, municipality or other public contracting entity commissions the construction of a road, school, hospital or other infrastructure, it is obliged to apply a procedure under the PPP. The choice of procedure depends on two main criteria — the subject of the contract and its value threshold, according to Art. 20 and Art. 21 of the Public Procurement Act. The very procedures by which a public contract can be opened are expressly regulated in Article 18 of the Public Procurement Act.
Public procurement in construction also has an important preventive function. They are a guarantee of protecting the interests of society, a means of preventing corruption and limiting the penetration of organized crime into the economic sphere, as well as a mechanism to prevent the property of central and local authorities from being squandered. 💼
What are the types of public procurement procedures in construction and how is it determined which one to use?
The procedures for awarding public contracts in the construction sector are legal mechanisms fully regulated in the Public Procurement Act (Public Procurement Act), through which the contracting authority selects a contractor in compliance with the principles of publicity, transparency and equal treatment. The choice of a specific procedure is not a matter of expediency, but of legality, tied to the type of contracting entity and the estimated cost of the construction. 🏗️
The law introduces an obligation to apply the relevant order. Pursuant to Article 17 (1) of the Public Procurement Act, contracting entities are obliged to apply the procedure provided for in the law for awarding a public contract, where there are grounds for doing so. That is, in the presence of construction of a certain value, the contracting authority does not have the right to choose an arbitrary procedure.
The types of procedures are regulated in Art. 18, para. 1 of the Public Procurement Act and include:
- open procedure;
- limited procedure;
- competitive procedure with negotiation;
- negotiation with a prior call for participation;
- negotiating with the publication of a contract notice;
- competitive dialogue;
- innovation partnership;
- negotiation without prior notice;
- negotiation without a prior call for participation;
- negotiation without publication of a contract notice;
- competition for a project;
- public competition;
- direct negotiation.
The open procedure and the public competition, pursuant to Art. 18, para. 2 of the Public Procurement Act, are procedures in which all interested persons may submit a tender. They are the most commonly applied in construction, especially in classical infrastructure projects.
The restricted procedure under Art. 18, para. 3 of the Public Procurement Act allows participation only to candidates invited after preliminary selection, which allows stricter control over the professional capacity of participants in complex constructions.
The procedures under Art. 18, para. 4 of the Public Procurement Act include a negotiable element. They are used when the subject of construction requires technical refinement or negotiation of specific conditions.
The competitive dialogue under Art. 18, para. 5 of the Public Procurement Act is applicable in particularly complex construction projects, when the contracting authority cannot determine the technical solution in advance.
The Innovation Partnership under Art. 18, para. 6 of the Public Procurement Act is used in innovative engineering and construction solutions, including development activities.
The procedures of negotiation under Art. 18, para. 7 of the Public Procurement Act constitute an exception and are applied under special conditions, with the contracting authority conducting negotiations with precisely defined persons.
The competition for a project under Art. 18, para. 8 of the Public Procurement Act is of particular importance in construction, since it acquires a plan or conceptual design in the field of architecture, urban planning or engineering.
The determination of the applicable procedure depends on three main factors:
- the type of contracting entity;
- the subject of the order;
- the estimated value.
According to Article 19 of the Public Procurement Act, different categories of contracting entities (public, sectoral, defence and security) apply a different set of procedures.
Of decisive importance is the estimated cost of construction. Pursuant to Art. 20, para. 1, item 1, b. “a” of the Law on Public Procurement in Construction with an estimated value greater than or equal to BGN 10 526 116, public contracting entities shall apply the procedures under Article 18, para. 1, item 1, item. 1 — 11.
When the value of construction is:
- from BGN 300,000 to BGN 10,526,116 — public competition or direct bargaining is applied, pursuant to Article 20, paragraph 2, item 1 of the Public Procurement Act;
- from 80 000 BGN to 300 000 BGN — the procedure is applied by collecting tenders with a notice or invitation, pursuant to Article 20, paragraph 3, item 1 of the Public Procurement Act;
- less than BGN 80,000 — the contracting authority may award the contract directly, pursuant to Article 20, paragraph 4, item 1 of the Public Procurement Act.
The determination of the estimated value is regulated in Art. 21 of the Public Procurement Act. According to Art. 21, paragraph 1, it includes all payments excluding VAT, including options and renewals. The artificial division of the contract for the purpose of applying a lower order (that is, in order to circumvent the thresholds), according to Art. 21, para. 15 of the Public Procurement Law, as well as the use of a calculation method for the purpose of applying the order for lower values, according to Art. 21, para. 14 of the Public Procurement Law, is prohibited. ⚖️
In practice, this means that:
- when constructing a highway section for BGN 50 million, an open or restricted procedure will be applied;
- in case of major renovation of a municipal building for BGN 250,000, a collection of bids with an announcement will be applied;
- in case of minor repairs worth BGN 60,000, direct commissioning is allowed.
Therefore, the type of procedure in construction is determined according to a strictly normative model, any deviation from the correct order entails the risk of illegality, financial corrections and penalties.
How is the procedure for awarding a public contract in construction?
The procedure for awarding a public contract in construction is a strictly formalized administrative-legal process, regulated in Public Procurement Act (Public Procurement Act)and Regulations for the Implementation of the Public Procurement Act (PPZOP).
According to Art. 1, para. 1 The Public Procurement Act regulates the conditions and procedure for awarding public works contracts in order to ensure efficiency in the expenditure of public funds. The procedure is carried out in compliance with the principles of Art. 2 PPP — equal treatment, free competition, proportionality, publicity and transparency.
In construction, the procedure is of particular importance due to:
- the high cost of construction contracts;
- the technical complexity of the object;
- the public significance of the result;
- the need to ensure legality and control.
The process can be systematized in 10 basic steps, which outline the logic of the assignment — from the planning to the execution of the contract.
- Planning and forecasting the need
- Determination of the object and estimated value
- Procedure selection and detection
- Preparation and approval of documentation
- Publication and announcement on the electronic platform
- Submission of tenders/requests to participate
- Appointment and work of a commission
- Assessment, ranking and decision to appoint a contractor
- Conclusion of a public procurement contract
- Execution, control and termination of the contract
Below, the introduction and the first three stages are discussed in detail.
1. Planning and forecasting the need
1.1. Responsibility of the contracting authority
According to Art. 5, para. 1 PPP contracting authorities shall be responsible for the correct:
- forecasting,
- planning,
- Conducting,
- completion and accounting of public procurement.
In construction, this means a preliminary analysis of:
- the need for construction or repair;
- the technical parameters of the construction;
- availability of funding;
- the time schedule.
1.2. Internal rules and organizational preparation
Pursuant to Article 1 of the PPZOP, the Regulations regulate the conditions and procedure for planning and preparation of the award.
Contracting authorities shall adopt internal rules for the management of the procurement cycle. They regulate:
- the competences of officials;
- the order of initiation of a construction order;
- control mechanisms.
1.3. Compliance with the principles
Already at this stage, the contracting authority must comply with Art. 2 ZOPS:
- not to impose discriminatory conditions;
- not to restrict competition;
- to comply with the requirements of the value and complexity of the construction. ⚖️
2. Determination of the object and estimated value
2.1. Determination of the object
According to Art. 3, para. 1, item 1 PPP subject to public procurement may be:
- execution of construction;
- design and execution of construction.
In construction, the subject must be clearly formulated - for example:
- construction of an administrative building;
- reconstruction of road infrastructure;
- design and construction of a school.
2.2. Use of CPV code
According to Art. 4 The codes of the Common Terminology Glossary (CPV) shall be used when awarding PPPs.
This ensures the correct classification of construction activities.
2.3. Determination of the estimated value
The estimated value is determined in accordance with Art. 21 PPP and includes all payments excluding VAT, including options and renewals.
In the case of construction, the value of all supplies and services provided by the contracting authority to the contractor when they are necessary for execution is also included.
It is forbidden:
- artificial division of the order (Art. 21, para. 15 ZLOTYS);
- use of a lower threshold method (art. 21, para. 14 ZLOTY).
This stage is crucial because it is the value that determines the applicable procedure.
3. Procedure selection and detection
3.1. Choice of procedure
The choice is made according to:
- the type of contracting entity;
- subject (construction);
- the value thresholds under art. 20 ZP.
At a higher value, the procedures under Art. 18 PPP (e.g. open, restricted, competitive negotiated procedure).
At lower values, public competition, collection of tenders or direct award apply.
3.2. Detection solution
The procedure begins with detection solution, which contains:
- the subject of the order;
- the selected procedure;
- approval of documentation;
- the estimated value.
The decision has the character of an individual administrative act.
3.3. Registration on the electronic platform
According to the PSOP, all actions are carried out through the centralized electronic platform under Article 39a of the ZPO.
The platform:
- registers the actions;
- certifies the time of submission;
- ensure publicity and transparency. 🖥️
4. Preparation and approval of documentation
4.1. Content of the documentation
After making a decision on opening, the contracting authority prepares the documentation for participation.
According to the PDO, the documentation contains:
- technical specification (description of construction, requirements for materials, performance standards);
- selection criteria (economic and financial situation, technical and professional capacity);
- award criterion (lowest price or optimal quality/price ratio);
- draft contract;
- instructions for the preparation and submission of tenders.
In construction, the technical specification is particularly essential because:
- determines the volume and nature of construction and installation work;
- may not contain discriminatory requirements;
- must be consistent with the subject matter, value and complexity (art. 2, para. 2 ZOPS).
4.2. Draft contract
The documentation necessarily contains a draft contract for a procurement contract.
According to Art. 69 The PPP contract must include at least:
- subject;
- price and terms of payment;
- deadline for implementation;
- guarantees;
- terms of termination;
- order of acceptance of work;
- Anti-corruption obligations (new item 9).
In construction, the following are often included:
- warranty periods;
- penalty clauses;
- phased reception.
4.3. Approval of documentation
The documentation is approved by the decision to open the procedure.
From this moment:
- the contracting authority is bound by the conditions laid down;
- any change is subject to legality;
- the time limit for the submission of tenders begins after publication.
This is a critical stage, because incorrectly formulated documentation can lead to an appeal or cancellation of the procedure.
5. Publication and announcement on the electronic platform
5.1. Publication through the centralized electronic platform
According to the OJSP, the procedures are carried out through the centralized electronic platform under Article 39a of the ZPO.
The platform:
- provides publicity;
- registers each action with an electronic time stamp;
- ensure transparency and traceability.
All actions of the contracting authority and participants are carried out after registration on the platform (Art. 9g of the GDPR).
5.2. Order notice
Depending on the chosen procedure, the following is published:
- contract notice;
- invitation to certain persons;
- announcement when collecting bids.
The notice shall contain:
- subject and CPV code;
- estimated value;
- time limit for submission of tenders;
- award criterion;
- conditions of participation.
At higher values, the information is also published in the Official Journal of the EU.
5.3. Clarifications and changes
Within the time limit for submission of tenders:
- participants may ask for clarification;
- the contracting authority is obliged to respond within the established deadlines;
- If necessary, it can extend the period.
Publicity at this stage ensures real competition and a level playing field. 📢
6. Submission of tenders or requests to participate
6.1. Electronic Submission
Under the electronic platform regime, tenders are submitted entirely electronically.
The system:
- certifies the exact moment of filing;
- does not allow opening before the deadline;
- provides protection of information.
6.2. Content of the offer
The offer for a construction contract usually contains:
- personal status documents;
- evidence of technical and professional capacity;
- technical proposal (implementation methodology);
- price offer;
- declarations of lack of grounds for removal.
Where the procedure is restricted, applications for participation shall be submitted first, after which the approved candidates shall submit tenders.
6.3. Deadline and inadmissibility of delay
Tenders submitted after the deadline:
- are not considered;
- the system automatically marks them as overdue.
The exclusionary nature of the term is a guarantee of equality and legality.
7. Appointment and work of the commission
After the deadline for submission of tenders, the actual competitive phase begins — examination and evaluation of the proposals.
7.1. Appointment of commission
The contracting authority appoints a commission by order. The Commission shall be a subsidiary body which:
- examine applications and tenders;
- checks compliance with the requirements;
- evaluate technical and price proposals;
- offers a ranking.
The Commission shall act within the powers conferred on it and in strict compliance with the documentation and the law. The contracting authority may not change the criteria after the opening of the procedure (principle under art. 2 PPP — Equality and Transparency).
7.2. Presence of an observer (where applicable)
Under the new provisions of the CFSP (Articles 67a-67d), the Minister of Finance may appoint an observer who:
- attend meetings;
- has access to documents;
- monitors compliance with the law;
- prepare a report after the completion of the work of the commission.
The Observer:
- does not have the right to participate in the assessment;
- does not have the right to consult the commission;
- sign a declaration of no conflict of interest.
This strengthens control in high-value construction contracts. ⚖️
7.3. Opening and viewing offers
The procedure takes place in stages:
- opening applications or tenders;
- verification of compliance with the requirements for personal status;
- checking the selection criteria;
- consideration of technical proposals;
- opening and evaluating bids (where applicable).
The Commission shall not have the right to:
- admit a participant who does not meet the mandatory conditions;
- changes the content of the offer;
- It introduces new criteria.
Each action is recorded, which guarantees traceability and the possibility of judicial control.
7.4. Appraisal
The evaluation is carried out according to the previously announced criterion:
- 'lowest price', or
- “optimal quality/price ratio”.
In construction, the second criterion is often used, which allows assessing:
- technical methodology;
- organization of execution;
- time limits;
- warranty parameters.
Upon completion of the work, the commission draws up a report with a proposal for ranking.
8. Assessment, ranking and decision to appoint a contractor
8.1. Report of the Commission
The Commission shall submit to the contracting authority:
- the minutes of the meetings;
- a reasoned proposal for a ranking;
- draft solution.
The report shall contain:
- findings on eligibility;
- the assessment carried out;
- The final ranking.
If an observer is appointed, he draws up his own report to the Minister of Finance and the contracting authority (Article 67c of the CRPD).
8.2. Decision on the appointment of a contractor
The contracting authority shall issue a decision on:
- designation of a contractor;
- termination of the procedure (if there are grounds);
- removal of participants.
The decision is an individual administrative act and is subject to appeal.
8.3. Notification and time limit for appeal
After issuing the decision:
- Participants shall be notified via the electronic platform;
- the time limit for an appeal to the Commission for Protection of Competition begins to expire.
Until the entry into force of the decision, a contract cannot be concluded.
8.4. Legal essence of the stage
This stage is key because:
- here the final choice is formed;
- any violation may lead to cancellation;
- a balance is struck between the discretion of the contracting authority and judicial review.
The procedure ends successfully only after the decision enters into force and passes to the next stage — conclusion of the contract under Art. 68 ZP.
9. Conclusion of a public procurement contract
The stage of conclusion of the contract marks the transition from the administrative procedure to a binding legal relationship between the contracting authority and the selected contractor. 🏗️
9.1. Prerequisite — a decision that has entered into force
According to Art. 68, para. 1 ZPO after the entry into force of the decision appointing a contractor, the parties agree on the date and manner of conclusion of the contract.
This means:
- the time limit for appeal has expired;
- no complaint has been filed, or
- the appeal is finally resolved.
Until now, no contract can be signed.
9.2. Refusal of the designated contractor
According to Art. 68, para. 2 PPAs, where the designated contractor refuses to conclude a contract, the contracting authority shall:
- terminates the procedure, or
- determines the second ranked participant as a performer.
Failure to appear on the agreed date without an objective reason is also considered a refusal.
This rule has a disciplinary nature and guarantees the stability of the procedure.
9.3. Mandatory content of the contract
According to Art. 69 A public procurement contract shall contain at least:
- details of the parties;
- subject of the contract;
- price, order and terms of payment;
- the term or duration of implementation;
- rights and obligations of the parties;
- terms of options and renewals (if any);
- performance guarantees;
- order of acceptance of work;
- obligations to comply with anti-corruption legislation;
- conditions and order of termination.
In construction, the following are of particular importance:
- warranty periods;
- phased implementation;
- acts and protocols during construction;
- penalties and liability clauses.
9.4. Specificity in mergers
According to Art. 70 PPE, where the contractor is a non-personified association, the contract is concluded upon presentation of a BULSTAT registration certificate or an equivalent document.
9.5. Documenting the transmission
Art. 71 The PPA provides that the transmission of the agreed result is documented by a protocol of acceptance and transmission.
This is a key point in construction — it certifies the completion of the construction or at a certain stage.
9.6. Moment of execution of the contract
According to Art. 72 The PPA contract shall be deemed to be executed by:
- take the last action to deliver the result, or
- making the last payment due — which occurred later.
The warranty period is not included in determining the time of performance.
10. Execution, control and termination of the contract
After signing the contract, the phase of actual construction implementation begins.
10.1. Performance in accordance with the contract and the law
The contractor is obliged:
- to carry out the construction according to the approved tender;
- comply with technical specifications;
- to complete the construction within the agreed time;
- to use subcontractors only under the terms of the contract.
The contracting authority shall exercise control by:
- construction supervision;
- acceptance committees;
- Interim and Final Protocols.
10.2. Possibility of termination
According to Art. 73 PPA the contracting authority has the right to terminate the contract without notice in certain circumstances (e.g. the existence of grounds under art. 118 ZLOTYS).
This is an extraordinary hypothesis applicable to serious violations.
10.3. External and Preliminary Control
The CFSP provides for:
- the possibility of prior control by the AOP;
- participation of observers;
- exchange of information through the electronic platform.
This control is particularly reinforced in high-value construction contracts.
10.4. Termination of the contract
The contract ends at:
- fulfillment of all obligations;
- making a final payment;
- acceptance of the construction;
- release of guarantees.
The contracting authority shall then report on the performance in accordance with its obligations under Article 5, para. 1 ZOP.
What happens if the contractor does not fulfill the assigned order with the care of a good trader?
Failure to perform a public procurement contract constitutes a deviation from the agreed between the parties and from the normally-established standard of conduct in the performance of binding obligations. When the contractor fails to fulfill the awarded contract with the care of a good trader, he violates both his contractual obligation and the general standard established in private law, which entails the commitment of his property liability and the possibility of implementing a number of protective mechanisms by the contracting authority.
The Law on Obligations and Contracts establishes a common standard of conduct — pursuant to Art. 63 para. 1 ZPD the debtor must fulfill his obligation with the care of a good steward. However, when the debtor is a trader, the higher professional standard applies — the care of a good trader. This means behavior consistent with the professional competence, experience and special knowledge that is expected of a person engaged in a commercial activity by occupation. In the context of a public works contract, this means:
- performance in accordance with the technical specification and the approved tender;
- compliance with building rules and regulatory requirements;
- provision of the necessary personnel, equipment and organization;
- compliance with contractual deadlines;
- adequate risk management and timely response to obstacles.
Any deviation — delayed implementation, poor quality, incomplete implementation, failure to comply with milestones, non-compliance with coordination, confidentiality or accountability obligations — constitutes a form of non-compliance. Failure can be complete, partial, delayed or inaccurate (qualitative default). For liability to arise, the default must be culpable, that is, not due to force majeure or to an objective impossibility beyond the control of the executor.
In the event of culpable default, contractual property liability arises. Its purpose is to compensate the contracting authority for the damage suffered. Harm can be:
- losses incurred — reduction of assets (e.g. costs of repairing defects, costs of a new procedure, penalties under funding programmes);
- 'missed benefits' means unearned revenue or other economic benefits that would have been realised if implemented correctly.
In a legal dispute, the contracting authority must prove both the presence of default and guilt, and the amount of damage. Proving missed benefits is particularly complex because it requires the establishment of a probabilistic economic outcome.
In order to avoid these evidentiary difficulties, penalty clauses are included in public procurement contracts. A penalty is a predetermined monetary compensation for non-performance — full, partial, delayed or poor. It is due in the event of culpable default and exempts the contracting authority from the need to prove the amount of the damage. A good contract technique requires:
- different penalties for different types of violations;
- daily penalty for delay, defined as a percentage of the value of the delayed stage;
- the possibility of setting the maximum amount of the penalty;
- a clear reference to specific contractual obligations;
- explicit possibility of offsetting payments due.
Failure to perform shall also give rise to the recovery of the performance guarantee. The guarantee has a security function — it guarantees the realization of the contractor's responsibility. It can be a monetary amount or a bank guarantee. Its recovery is not an automatic sanction, but must correspond to the amount of compensation or penalty due. It is good practice to provide in the contract that:
- the guarantee may be absorbed in whole or in part;
- recovery does not preclude claiming compensation in excess of its amount;
- in the event of a legal dispute, the guarantee may be retained until the final resolution of the dispute.
Where the guarantee is in the form of a bank guarantee, it is usually unconditional, irrevocable and payable on first demand. That is, the bank owes payment upon a written request from the principal, without examining the dispute between the parties. However, the bank guarantee has a period of validity, which should be consistent with the period of performance and the possible period for establishing default.
In case of phased execution or in the presence of a warranty period for the construction, it is possible that part of the guarantee will remain to secure the obligations of the contractor during the warranty period. Thus, it is ensured that in the event of defects during the warranty period, the contractor will fulfill his obligation to eliminate them.
Substantial failure may result in the termination of the contract. Spoilage is the unilateral termination of a bilateral contract due to culpable non-performance. To be eligible:
- the default must be substantial;
- the debtor is responsible for it;
- Let the spoiling side stand up.
The materiality shall be assessed in the light of the gravity of the infringement and the interest of the contracting authority. In practice, thresholds are often set - for example, non-performance over a certain percentage of the volume or prolonged delay. As a rule, an additional deadline is given for execution, unless the execution has become impossible, useless or was necessary at a specific time.
In the case of construction contracts, the special possibility of cancellation in the event of obvious future non-performance is also applicable — when it becomes clear that the contractor will not be able to perform on time or in a proper manner. This requires objective facts that give a high degree of certainty about future non-compliance.
In addition to termination, the contract may be terminated by mutual consent, due to unforeseen circumstances or in other legally regulated hypotheses. Unforeseen circumstances are those that occurred after the conclusion of the contract, which could not have been foreseen in due diligence and make performance impossible under the agreed conditions. In these cases, the contracting authority owes compensation to the contractor, since the termination is not his fault.
In addition, the default has an impact on the future participation of the contractor in public procurement. If it is proven that he is guilty of non-performance of a contract leading to termination, early termination or sanctions, the contracting authority may remove him from future proceedings. Thus, non-performance has not only a property, but also a reputational and professional effect.
Finally, when the subject of the contract requires the maintenance of certain professional qualities — license, registration or “Professional Liability” insurance (for example, in construction under Art. 171 ZUT) — their loss may lead to termination of the contract. This is also a form of non-fulfillment of the care requirement of a good trader.
How can decisions of the contracting authority concerning the award of public contracts in Bulgaria be appealed?
The appeal against decisions of the contracting authority is regulated in Chapter Twenty-seventh of the Public Procurement Act (Public Procurement Act) and constitutes a special administrative procedure that aims to guarantee the legality of the procedures and the protection of competition and equality of participants. The proceedings take place before the Commission for Protection of Competition (CPC) and subsequently before the Supreme Administrative Court (SAC).
1. Which acts are subject to appeal?
According to Art. 196, para. 1 PPA shall be subject to appeal against any decision of the contracting authority in proceedings concerning:
- public procurement (including on the basis of a framework agreement, dynamic system or qualification system);
- conclusion of a framework agreement;
- the establishment of a dynamic purchasing system or qualification system;
- competition for a project.
The appeal is about Legalityof the act — including in the presence of discriminatory economic, financial, technical or qualification requirements in the documentation or notice (Art. 196, para. 3 ZOPS).
The following are also subject to appeal:
- a notice of voluntary transparency;
- acts or omissions of the contracting authority which impede access to or participation in the procedure (Article 196, para. 5 ZLOTYS).
For example, decisions on domestic competitive selection at low value (less than BGN 300,000 for construction and BGN 100,000 for supplies and services), as well as the reasons for not dividing the contract into separate items, are not subject to appeal.
2. Who has the right to file a complaint?
According to Art. 198 ZPO complaints may be filed by:
- any interested party (e.g. against initiation of proceedings);
- interested candidate;
- an interested candidate or participant (e.g. against a decision to appoint a contractor);
- professional branch organizations — in certain cases.
The legal interest must be justified and proven. In the absence of a legal interest, the proceedings are terminated (Art. 213, para. 1, item 1, para. 1 ZOP).
3. Time limits for appeal
The complaint is filed in 10-day period(Art. 197 PDO), the starting point being dependent on the type of measure under appeal:
- from publication (e.g. in the case of negotiated decisions);
- from service (e.g. decision to appoint a contractor);
- from the notification of action/inaction;
- from the expiration of certain time limits in the law.
Failure to comply with the deadline leads to a refusal to initiate proceedings (Art. 201, para. 1, item 2). 1 ZOP).
4. How is the complaint filed?
The complaint is filed by Commission for Protection of Competition, with a copy to the contracting authority (Art. 199, para. 1 ZOP). It must be in Bulgarian and contain:
- details of the complainant;
- details of the contracting authority;
- identification of the order (including unique number in the ROP);
- a specific reference to objections and requests;
- evidence and document of paid state fee.
If the complaint is irregular, the CPC gives a period of three days to eliminate the irregularities.
5. Formation and development of proceedings before the CPC
The Chairman of the CPC initiates proceedings within three days (art. 200 ZLOTYS). The contracting authority shall send an opinion and the entire file within three days of notification.
The production includes:
- examination of the file (art. 207);
- collection of evidence, including expert opinions (art. 208);
- open meeting;
- preparation of a report;
- pronouncing with a decision.
The CPC pronounces:
- within one month — in the case of orders under Art. 20, para. 1 ZOP;
- within 15 days — in other cases (art. 212 ZLOTYS).
The decision shall be reasoned in writing and shall be announced within 7 days of its issuance.
6. Interim measure — stay of proceedings
Appeals do not always stop the procedure. The appeal suspends the procedure automatically only when the decision to appoint a contractor is appealed (art. 203, para. 4 ZOPS).
In the rest of the cases, the procedure stops only if:
- a request is made for the imposition of a provisional measure 'stay of the procedure';
- The CPC granted the request.
The CPC shall rule within 7 days (art. 204 PPA), considering:
- the public interest;
- the interests of the parties;
- possible harm.
7. Preliminary execution
Where a decision appointing a contractor is appealed, the contracting authority may request pre-implementation(Art. 205 ZLOTYS).
The CPC allows preliminary execution by way of exception — when:
- the life or health of citizens is threatened;
- particularly important state or public interests are protected;
- there is a risk of significant or irreparable harm.
Preliminary execution is not allowed for purely economic reasons.
8. What decisions can the CPC make?
According to Art. 215 ZOP KZK can:
- leave the complaint without respect;
- annul the decision of the contracting authority;
- to return the file for continuation from the last lawful act;
- to establish illegality;
- declare the decision null and void;
- to impose penalties (from 5 to 10% or from 1 to 3% of the value of the contract for certain violations).
The CPC may give binding instructions to the contracting authority.
9. Appeal to the Supreme Administrative Court
The decision of the CPC is subject to appeal to a three-member composition of the SAC in 14-day periodof its communication (art. 216 ZLOTYS).
YOU:
- consider the complaint within one month;
- issue a final decision;
- production is fast and with short deadlines.
The orders and determinations of the CPC are also subject to appeal by private appeal (Article 216a of the ZPO).
10. Expenses, fees and benefits
The proceedings are subject to state fees (art. 220 ZLOTYS). The CPC decides on the costs according to the APC (art. 217 ZLOTYS).
Any interested person may claim compensation for damages caused by violations in the conduct of the procedure and the conclusion of the contract (Art. 218 ZLOTYS).
When to contact a public procurement lawyer in construction law?
Public procurement in construction combines a complex administrative procedure under the Public Procurement Act (PPA) with subsequent contractual execution, which is subject to the rules of private law, including the Law on Obligations and Contracts and special norms of construction legislation (for example, the Public Procurement Law). The risk of procedural errors, financial penalties, loss of contract or liability for damages is therefore significant. In a number of situations, the intervention of a lawyer specializing in public procurement and construction law is not simply advisable, but strategically necessary.
First of all, consultation with a lawyer is justified already at the stage of preparing an offer. In public works contracts, the requirements for technical and financial indicators, personnel qualifications, professional liability insurance, registrations and turnover are often formulated strictly and in detail. Incorrect interpretation of the documentation or failure to prove compliance with the selection criteria may result in removal from the procedure. The lawyer can analyze:
- whether the requirements imposed are lawful or discriminatory;
- whether there are grounds for appeal;
- whether the offer contains all the mandatory elements;
- how to structure the evidence of technical and professional competence.
Legal assistance is particularly important in the event of suspected unlawful conditions, such as excessive turnover requirements, unclear technical specifications or criteria that restrict competition. In these cases, the deadlines for appeal are short (10 days), which requires a quick and competent response.
A public procurement lawyer is also needed when a candidate or participant is removed from the procedure. Removal is often motivated by a lack of compliance with the selection criteria, irregularities in the documents or inconsistency of the technical proposal. The legal analysis should establish:
- whether the removal is lawful;
- whether the clarification procedure has been followed;
- whether the contracting authority has applied the same standard to all participants;
- whether there are grounds for complaint to the Commission for Protection of Competition.
The same applies in the event of an appeal against a decision designating a contractor, where a participant considers that the ranking was carried out in violation of the evaluation criteria or in the incorrect application of the methodology.
The next critical moment is the conclusion and execution of the contract for a public works contract. Contracts often contain complex clauses concerning:
- performance guarantees;
- penalties for delay and poor-quality performance;
- conditions for amendment;
- phased implementation and adoption;
- warranty liability.
In construction, the risks are high — technical defects, delays due to objective obstacles, changes in material prices, disputes over additional works. The intervention of a lawyer is necessary in the case of:
- imposing or challenging penalties;
- recovery or retention of a performance guarantee;
- the occurrence of a dispute about the quality of construction and installation works;
- the need to amend the contract;
- risk of spoilage or termination.
Particularly sensitive is the issue of “material default” and the possibility of termination of the contract. In the case of construction sites, this can lead to serious financial losses and affect future participation in public procurement. If guilty failure resulting in spoilage or penalties has been proven, this may be grounds for removal from future proceedings. It is precisely because of this strategic risk that legal protection should be initiated at the first sign of conflict.
The need for a lawyer also arises when financial corrections or sanctions are imposed, especially when the project is financed with funds from European funds. In these cases, rules from the CFP, administrative law and rules for the management of EU funds are intertwined. Legal protection must be well argued both factually and legally.
Consultation is also advisable in the event of objective obstacles to implementation — for example unforeseen circumstances, a change in the regulatory environment, suspension of funding or a significant change in economic conditions. In these cases, it must be carefully assessed whether there are grounds for amending the contract or for termination in compliance with the law.
On the part of the contracting authority, legal assistance is required in the case of:
- preparation of documentation and selection criteria;
- formulation of the evaluation methodology;
- preparation of motivated decisions;
- protection in the event of an appeal before the CPC and the SAC;
- correct structuring of contractual clauses on guarantees and penalties.
Errors in the documentation may lead to the cancellation of the procedure, the return of the file or the imposition of penalties.
In this sense, we should turn to a public procurement lawyer in construction law not only in the event of a dispute that has already arisen, but also preventively — when preparing a tender, in case of suspicion of discriminatory conditions, in case of removal or unfavorable classification, in the imposition of penalties, in the event of the recovery of guarantees, in the risk of breaking a contract or in case of complex modifications of construction. the contract. The complexity of the legal framework and the high cost of construction projects make professional legal assistance a key tool for protecting interests and minimizing risk.
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