The correct calculation of the reference period in public procurement procedures

In public procurement procedures in almost all cases we encounter reference specifications among technical/economic minimum requirements, considering that in the eyes of the tender announcers, reference – as past experience - is a relevant filter for evaluating tenderers’ suitability to fulfil the contract. By requiring reference works as suitability requirement, the tender announcer intends to make certain that the tenderer has already performed work(s), whose scope and volume were similar, in accordance with the terms and conditions of the relevant contract.

Concerning references, in the daily practice, mostly on tenderer’s side, the correct method for verifying references often causes misunderstandings; many people mistakenly believe that – in accordance with the common terminology – also in public procurement procedures references shall always be provided by reference certificates issued by former customers but it is an erroneous way of thinking as we have already explained it in detail in our previous statement.

In this statement we intend to clarify another problem related to references, i.e. the calculation of reference periods pursuant to applicable laws, considering that day after day we encounter a wide variety of practices applied by tender announcers; it is no wonder that tenderers do not know the rules to be followed either. We would like to provide assistance in this regard.

Points a) of Sections (1), (2) and (3) of Article 21 of Government Decree No. 321/2015 provide for examination periods of references that can be specified in public procurement procedures as follows:

Point a) of Section (1) of Article 21:

„...a) giving an account of the most important supplies during the three years from the date of posting the call for competition or from the date of sending it in the procedures that starts with no announcement; the Tender Announcer shall take the performances in these three years take into account, but where it is considered necessary to ensure an adequate level of competition the Tender Announcer may also take into account supplies provided during the six years from the date of posting (sending) the call for competition, provided that the Tender Announcer had indicated that arrangement in the call for competition;"

Point a) of Section (2) of Article 21:

"...a) giving an account of the most important construction projects implemented during the five years from the date of posting the call for competition or from the date of sending it in the procedures that starts with no announcement; the Tender Announcer shall take the performances in these five years take into account, but where it is considered necessary to ensure an adequate level of competition the Tender Announcer may also take into account construction projects implemented during the eight years from the date of posting (sending) the call for competition, provided that the Tender Announcer had indicated that arrangement in the call for competition;"

Point a) of Section (3) of Article 21:

"...a) giving an account of the most important services provided during the three years from the date of posting the call for competition or from the date of sending it in the procedures that starts with no announcement; the Tender Announcer shall take the performances in these three years take into account, but where it is considered necessary to ensure an adequate level of competition the Tender Announcer may also take into account services provided during the six years from the date of posting (sending) the call for competition, provided that the Tender Announcer had indicated that arrangement in the call for competition.”

In what follows we show the correct method for calculating the reference period(s) pursuant to laws in force, explained with a concrete example: 

• In a public procurement procedure for purchasing goods the day on which the tender announcement was posted: 4 July 2022.

In this regard it should be noted that the reference period should not be calculated from the date of publication of the tender announcement but from the date of posting the call for tender (for procedures without notice after the invitation has been sent). For procedures that reach the value limit specified by the Union this is the day on which the Public Procurement Authority sends the notice to the EU’s Official Journal for publication, while for procedures that do not reach the value limit specified by the Union is the day on which the Tender Announcer sends the notice to the Public Procurement Authority for publication. 

• In the call for competition the tender announcer states that they intend to examine references provided for the three years preceding the date of call for competition. 

• Pursuant to Paragraph (1) of Article 48 of the Public Procurement Act (hereinafter PPA): „As regards time limits stipulated in this law, the starting date shall not be included in the time limit or period (hereinafter jointly referred to as the time limit) expressed in days, months or years. The starting point is the date on which the act or any other circumstance that give rise to commencing the time limit falls.” 

• According to the second sentence of Paragraph (1) of Article 48 of PPA, for the period to be verified the day on whichthe act or any other circumstance that give rise to commencing the time limit falls is considered the starting day, i.e. in the present case the starting date is 4 July 2022. 

• According to the first sentence of Paragraph (1) of Article 48 of PPA, the starting date – i.e. 4 July 2022 – shall not be included in the period expressed in months. 

• In Paragraph (4) of Article 48 of PPA, without specifying any other conditions for engagement, the legislator expressly stipulated that the time limit specified in the call for tender starts on the day after posting the invitation to tender. 

• Since the Tender Announcer specified the period under examination in the call for competition as a notice therefore this period starts on the day following the date of posting, i.e. on 5 July 2022. 

• Pursuant to Paragraph (2) of Article 48 of PPA, the period expressed in years (3 years in the present case) expires on the day which, by virtue of its number, corresponds to the day following the starting day or on the last day of the month if that day is missing in the expiration month. In this example the expiration date of the period (i.e. the three years) is 5 July 2019 (because the starting date is 4 July the following day by virtue of its number is 5 July). Here it must be examined whether this day is a working day (yes in this example); if not, pursuant to Paragraph (3) of Article 48 of PPA the time limit will expire only on the subsequent working day.

In the light of the above, the reference period set forth in the call for competition had to be verified from 5 July 2019 to 5 July 2022. 

Since 1 June 2017 Paragraphs (1a), (2a) and (3a) of Article 21 of Government Decree No. 321/2015. (X. 30.) stipulate that for verifying the performances during the three years specified in case of procurement of goods and ordering services the Tender Announcer shall take into account supplies and services that have been completed during the three years but started within maximum six years, and for verifying performances in six years supplies and services that have been completed during the six years but started within maximum nine years should be taken into consideration; for verifying the performances during the five years specified in case of construction projects the Tender Announcer shall take into account  construction projects completed during the five years but started within maximum eight years, and for verifying performances in eight years construction projects that have been completed during the eight years but started within maximum eleven years should be taken into consideration. Where it is considered necessary to ensure competition the Tender Announcer may take into account performances commenced earlier provided that the Tender Announcer had indicated that arrangement in the call for competition. In the call for competition the Tender Announcer shall indicate the number of years which will be taken into account for determining the commencement of performances.

When calculating these periods, proceed as described above.