How to prepare a public procurement in Bulgaria for the delivery of food in educational and social institutions?

The precise and comprehensive application of the legal doctrine in the sphere regulating healthy nutrition in children's institutions and schools should be a priority of every institution in the State. In continuation of what has been said, public contractors spending budgetary funds to provide food products in state and municipal establishments should be extremely precise when preparing a procedure for awarding public procurement in this area. We believe that the requirements for the participants, the criteria for their selection, the technical specifications, the draft contract, as a set of documents that the contracting authority prepares in accordance with the Public Procurement Act, should correspond to the maximum extent to the purpose for which they are held - providing quality healthy food in the facilities for social services.

 For this purpose, we will outline the main steps to be applied in a procedure for awarding a public contract under Article 18 of the Public Procurement Act, so that it is prepared, organized and conducted in accordance with the rules of the Public Procurement Law and the Regulations for its implementation and other relevant legal acts in force in the field of food and their quality characteristics.

1. Legal term "Public contracting authority" of public procurement.

"Procuring entity" is a public procurement authority in the field of supply of food products in municipal and state institutions. In the case of municipal institutions, such as kindergartens and schools [1]  on the territory of the respective municipality, the contracting authority is the mayor of the municipality. In some cases, the mayors of municipalities delegate the authority to conduct public procurement procedures with the object of supplying food products to the head of the relevant institution (director, manager or other official)

Here we draw attention to the fact that with the changes in the Public Procurement Act (promulgated SG No. 88 of 2023, in force from 22.12.2023), the contracting authorities should comply with the delegation of their powers under Article 5, Paragraph 1 , which is within the prerogatives of only two categories of persons - an official who has the right to replace him according to a normative, administrative or other act that determines the representation of the contracting authority  or  a person who carries out administrative management in the organization of the contracting authority.

On this occasion, for the convenience of the contracting authorities of the Public Procurement Portal, as of January 11, a methodological instruction of the AOP MU-2 of 29.12.2023 [2] was published  regarding the implementation of the new version of Art. 7, para. 1 of the Public Procurement Act , concerning the delegation of powers. The delegation of powers under Article 5, Paragraph 1 is carried out by an express act (usually the act by which the delegation of powers is carried out is an order).

The above hypothesis of authorization should be distinguished from the hypothesis of para. 2 of art. 7 of ZOP, concerning replacement of the contracting authority. In this case, the substitute shall exercise the powers of substitution in full on behalf of the substituted authority.

The differences in the hypotheses of paragraph 1 and paragraph 2 of Art. 7 ZOP are essential and the contracting authority should very carefully apply this provision, regarding the type and volume of responsibilities it delegates to the person, especially since after the entry into force of the new version of Art. 7 ZOP, all authorizations that do not correspond to the new version are are considered to have been issued on a lapsed legal basis.

2. Registration of the contracting authority in the electronic platform in accordance with Art. 39a, para. 1 ZOP .

The contracting authority announces and awards public procurements under Article 20, Paragraph 1, Paragraph 2 and Paragraph 3 of the Public Procurement Act through the Unified National Electronic Web-based Platform called "Centralized Automated Information System "Electronic Public Procurement" (CAIS EOP).  All actions related to the awarding of public contracts on the platform are carried out by contractors  who are registered on it. 

With the registration, a profile of the organization is created on the platform (Art. 9g PPZOP).  The contracting authorities should also create a profile of the buyer (the internet address of the contracting authority), which is maintained on the CAIS EOP platform.

The buyer's profile and the CAIS EOP contain the documentation for a specific public order, acc. Art. 36 ZOP.

3. Preparation of a public procurement procedure.

Public contracting authorities should predict the procurement process, foreseeing the optimal time for preparation, implementation and conclusion of a contract for the supply of food products, so that the relevant establishment is not faced with the difficulty of supplying necessary food products at optimal appropriate prices, given that consumes a budgetary resource.

In this context, the PPA provides for the planning of the procedures that the contracting authority intends to carry out in the following year. Procuring entities may announce their intentions to award public contracts or to conclude framework agreements in the next 12 months by publishing a preliminary information notice (Art. 23 ZOP).

3.1. Determination of the type of public procurement.

When awarding public contracts, public contracting authorities apply the procedures under Art. 18, para. 1, items 1 - 3, 6 - 8 and 11 - 13 of the ZOP.

For the selection of a contractor to deliver food products to kindergartens, or educational institutions, or other social institutions, the contracting authorities usually conduct an open procedure, a public competition, a collection of bids with an advertisement, depending on the estimated value and the stipulated quantities, according to the needs of the specific contracting authority. This type of procedures are to an exceptional extent guaranteeing the interests of both the contracting authority and the participants themselves. Because on the one hand unlimited access to participation in the procedure is granted to interested persons who, under the conditions of competition, would satisfy the interests of the contracting authority in terms of price and quality to the maximum extent, on the other hand competition guarantees an optimal and expedient use of public funds.

3.2. Content and preparation of documentation.

The phase of preparation of the public order for the supply of food products includes the preparation of qualified documentation that is in accordance with the specifics of the object of the order and the legal requirements of the Public Procurement Act, the Regulations for its implementation and other relevant legal acts.

From my professional experience as a lawyer involved in the preparation of public procurement procedures in a municipal structure, I would say that it is a good practice for the contracting authority to issue an order to determine the team of specialists involved in the preparation of a public procurement procedure , incl. preparation of the documentation, setting a deadline for the preparatory phase of the procedure.

The documentation in a public procurement includes: a decision to open the procedure, a public procurement announcement, the technical specifications, investment and other projects, when required for the preparation of the offer, the methodology for determining the complex evaluation of the offer, when applicable, sample documents, as well as an instruction for their preparation, a draft contract, except when the contract is concluded under general conditions or a regulatory act determines its mandatory content. The documentation may also contain other documents, depending on the specifics of the object of the public procurement. This set of documents, along with a prepared decision to open the procedure and an announcement, are the final stage of the preparation of the procedure.

NB!!! When preparing the documentation, one should take into account the amendments adopted in the Public Procurement Act and Public Procurement Act as of the date of preparation and opening of the procedure for awarding the public procurement, such as, for example, the introduced special conditions for the execution of orders (Art. 47 of the Public Procurement Act), the mandatory environmental requirements (Art. .47a ZOP).

The contracting authority should comprehensively formulate in the Public Procurement Notice the requirements for the participants, including - grounds for mandatory removal (Article 54 of the Civil Code), incl. at its discretion, to include the optional grounds under Art. 55 of the Civil Code; - the selection criteria, which refer to: 1.  the suitability (legal capacity) to exercise a professional activity; 2.  the economic and financial situation; 3.  technical and professional abilities, necessarily specifying their requirements in accordance with Art. 60 - 61 of the Civil Code and Art. 63 of the Civil Code and the ways to prove them.   

Public orders concerning the supply of food products must comply with the current relevant European legislation.

Here, it is appropriate to note that a standardized sample of a contract for the supply of food products has been published on the website of the Public Procurement Agency. [3]  It was approved by Order No. ЗМФ-1365/29.12.2016 for approving standardized samples of documents under the Law on Public Procurement. An indisputable fact of the legal reality is  the repeal of the Food Act,  cited in a sample of the AOP, constituting a Contract for the supply of food products.  A completely new Law on Food was adopted  (Official Gazette, No. 52 of 09.06.2020, in force from 09.06.2020) repealing the old one in § 2 of the Transitional and Final Provisions, which is currently  amended with SG No. 41 of 10.05.2024, in force from 10.05.2024.

In this sense,  we draw attention to the contracting authorities for the need for thorough follow-up of the current regulations, specifically concerning the supply of food, in the process of preparing a public order.

4. Publication of the public procurement award procedure.

Each public order valued under Art. 20, para. 1 - 3 and 7 of the Public Procurement Act is published in the Register of Public Procurement and in the relevant profile of the buyer and receives a unique number.

Documents related to participation in public procurement are submitted through the platform in accordance with the rules for its use under Art. 229, para. 1, item 12 of the Civil Code and subject to compliance with the requirements set by the contracting authority.

The contracting authority sets up a commission for the selection of participants, consideration and evaluation of the offers, in accordance with the methods and terms specified in the PPA and PPZOP. The commission is an auxiliary body of the contracting authority for consideration of the received offers of the participants in the procedures, evaluation and ranking, which in the final phase of its activity presents a report/protocol reflecting its overall activity, findings, proposals.

5. Completion of the procedure.

The final act of a public procurement procedure is the final decision of the contracting authority, determining the contractor under a public procurement contract or ordering the termination of the procedure (Art. 108 of the Public Procurement Act).

6. Conclusion of a contract.

The contracting authority concludes a written contract for public procurement with the appointed contractor, under the conditions of Art. 112 of the Public Procurement Act.

7. Appeal proceedings.

Decisions of the contracting authority made as a result of a procedure for awarding a public contract are subject to appeal before the Commission for the Protection of Competition (Art. 196 of the Civil Procedure Code).

In Part Six "Removal of Violations in Procedures" of the Civil Procedure Code, the acts subject to appeal, the time limits for those entitled to file an appeal are regulated. In the complaint, all objections and the grounds for them, as well as the requests of the complainant, should be specified comprehensively and specifically. Indeed, the law allows, if the CPC considers there to be an omission, to notify the complainant by giving him a three-day period to remedy the irregularities. From our many years of practice in the field of appealing acts before the CPC, we have come to the opinion that a well-grounded and comprehensive appeal from objections with its submission on time is always an indication of thoroughness and precision, in this sense, high professionalism. Instructions of the CPC according to Art. 199, para. 4 of the Civil Code would be somewhat a sign of weak argumentation on the part of the contracting authority already in the initial phase of the special proceedings before the CPC.

If the complaint does not suffer from defects or they are removed in time, the CPC schedules an open meeting, providing an opportunity to get acquainted with the evidence collected in the file and to provide new evidence at the latest on the day before the hearing on the examination of the complaint (Art. 209 of ZOP).

The procedure for appealing a contracting authority's act is a two-instance decision. Decisions of the CPC are subject to appeal before the Supreme Administrative Court, which rules within one month of receiving the appeal and its decision is final. (Art. 216 of the Civil Code).

8. Conclusion.

Public procurement takes a significant share in the expenditure of public resources for the supply of food products, which is why they must be extremely refined to meet the needs of our society.

This presentation constitutes a conceptual scheme of the main steps that contracting authorities, organizing procedures for the awarding of public orders for the supply of food products, need to take into account during their preparation and implementation. The specifics in this area are essential, which is why we cannot cover all aspects and possible problems.

Expert assistance in the preparation, announcement, evaluation and awarding of electronic public procurements in the CAIS EOP is our priority and an opportunity to assist contracting authorities in this area.

Author: Borislava Doncheva - attorney at law

[1]  Certain schools have a special status, for example National High School for Performing and Screen Arts Plovdiv

[2]  You can familiarize yourself with the instruction here: MU2_2023.pdf (aop.bg)

[3]  https://www2.aop.bg/obrazci-i-spisyci/standartizirani-dokumenti/

Regarding the preparation of your documents for your public order, you can contact us by email: This email address is being protected from spambots. You need JavaScript enabled to view it.