Dimitrov, Petrov & Co.’s in-depth knowledge of the legal intricacies of public procurement in Bulgaria is based on extensive experience in advising the complete set of stakeholders involved in public procurement procedures – economic operators, public contracting authorities and utilities contracting entities.
The expertise of Dimitrov, Petrov & Co.’s lawyers stands on a solid foundation of consulting economic operators in the preparation of tender offers ensuring the specific requirements of procurement procedures are met as well as on a highly successful involvement in procedures for appealing actions of contracting authorities before the Bulgarian Commission for Protection of Competition and the Supreme Administrative Court. The firms’ practice focuses on providing clients with clearly structured advice to guide them through all stages of the complicated process of having the procurement contract awarded. Naturally, Dimitrov, Petrov & Co. also consults clients with respect to their relations with contracting authorities after the awarding of a procurement contract.
Major telecommunications operators, ICT producers, construction and pharmaceutical companies, medical products suppliers, software developers trust all their public procurement matters to Dimitrov, Petrov & Co.
In 2016 Dimitrov, Petrov & Co.’s public procurement experts consulted and developed jointly with the Organisation for Economic Co-operation and Development (OECD) guidelines and additional paper policies for implementation of the public procurement legislation within the Project „Assistance in the Design and Implementation of the Bulgarian Public Procurement Training and Development Programme in the Frame of ESIF Ex-ante Conditionality Action Plan”, PA grant agreement ID No. CCI 2015CE16BAT100. The documents prepared by our public procurement experts have been recognised by the Institute of Public Administration as comprehensive training materials. They will be used in 80 training sessions for 1,000 employees involved in public procurement by the end of 2019.
Since 2013 Dimitrov, Petrov & Co.’s litigation team has been appealing significant number of penalty acts issued by the State Financial Inspection Agency whereby a contracting entity operating in the utilities sector was sanctioned for infringements committed in the course of awarding public procurement contracts. Our legal experts drafted comprehensive appeals against the Agency’s allegations and marked a disturbingly formal enforcement of the public procurement legislation. Nevertheless, our team succeeded in repealing the majority of the acts concerning strategic issues such as grounds for opening public procurement procedures and applying the exceptions for not opening procedures as provided in law.
Since 2014 experts of the law firm have been engaged in assisting the European Bank for Reconstruction and Development and its consultants in the implementation of the project „Bulgaria: Policy Advice and Implementation Support for е-Procurement Reform in the Public Procurement Sector“. The main activities carried out by our lawyers include provision of legal expertise with regard to the implementation of the project; preparation of analyses on e-Procurement readiness in accordance to national legislation in force; review of the ‘acquis communautaire’ which establishes the public procurement regime regulation on EU level; analysis of the impact of the existing national e-Government legislation on the e-Procurement initiatives, etc.
Further to the above Dimitrov, Petrov & Co.’s public procurement experts have been taking part as local correspondents in various international and EU initiatives related to cross-border researches on public procurement. These include the ‘ABRplus (Administrative Burden Reduction) Study, Lot 2 Public Procurement’ Project, part of the Framework Contract on Evaluations and Impact Assessments, commissioned by the EC’s Directorate General Enterprise and Industry as well as the ongoing ‘Benchmarking Public Procurement 2016 project currently implemented by the World Bank Group.
In 2014 lawyers from Dimitrov, Petrov & Co. are engaged with the preparation of an appeal and in-court representation before the Commission for Protection of Competition and the Supreme Administrative Court under a case against the Tariff of Fees collected for proceedings under Chapter XI of the Public Procurements Act. The appeal of the normative act is justified by a series of reasons related to the presence of contradictions with substantive and procedural provisions, as well as non-compliance with the purpose of law, given the introduction of proportionate fees leading to unreasoned increase in their amount – in some cases by over 17 times. On the grounds stated by our public procurement experts and pursuant to Art. 193, Para.1 of the Administrative Procedure Code, the Second Panel of the Supreme Administrative Court repealed Decree No.196/July 10th, 2014 of the Council of Ministers regarding the adoption of the Tariff on the fees (promulgated in SG, issue 58/ July 15th, 2014, into force as of July 15th, 2014) on June 29th 2015.
In 2013 Dimitrov, Petrov and Co. represented a distributor of medical appliances in its challenge of two decisions for opening public procurement procedures by contracting authorities such as the Military Medical Academy and Executive Environment Agency. Our experts’ work was focused on disputing the technical specifications set by the contracting authorities as being discriminative and creating unjustified obstacles for participation of the economic operators in the procedures. In relation to these challenges our team succeeded in suspending the conduction of one of the public procurement procedures – an interim measure which is admitted by the Bulgarian Competition Protection Commission and the Supreme Administrative Court on exceptionally rare occasions.
Since 2012 our Public Procurement team has been representing a security services provider in procedures before the Bulgarian Commission for Protection of Competition and the Supreme Administrative Court. We have provided legal assistance to the client both on the side of a complainant and on the side of an interested party in numerous challenges of public procurement procedures regarding security services. Our team was involved in court procedures, with material interest ranging from EUR 160 000 to EUR 3 000 000, against contracting authorities such as the Bulgarian Ministry of Defense, the Ministry of Transport, Information Technology and Communications, the Ministry of Economy, the Ministry of Agriculture and Food, National Electricity Company, Bulgarian universities and many others.
In 2011 Dimitrov, Petrov & Co. provided expert legal assistance to a client participating in a public procurement procedure related to the selection of a contractor for the organization, training and implementation of sealants to the first permanent molars of children of 6 - 8 years of age under the National Programme for Prevention of Oral Diseases in Children Aged 0-18 years in Bulgaria conducted by the Ministry of Health.
In 2011 Dimitrov, Petrov & Co. provided assistance to one of the largest manufacturers of railway equipment and rolling stock in the preparation of tender documentation for participation of public procurement procedure for the award of a contract for the supply and maintenance of the trains for the Sofia Underground.
In 2011 Dimitrov, Petrov & Co. was engaged by one of the international market leaders in design, manufacture, maintenance and supply of equipment and components for railway systems. The firm’s Public Procurement team provided advice on procedural and substantive matters related to the preparation of the tender, as well as the obtaining of the necessary guarantees. We thoroughly supported the client in the course of the entire legal process up to the decision for awarding the contract.
As of the beginning of 2009 Dimitrov, Petrov & Co. Law Firm has been a public procurement consultant of one of the three mobile network operators in Bulgaria. The firm’s lawyers are involved in advising the client through all the stages of the tendering process organized by the relevant Bulgarian public authorities – from the reviewing of tender documentation, the participation conditions and technical specifications, through advising on the preparation of the offers and enquiries to the contracting authorities, as well as appealing decisions of the contracting authorities and advising during conclusion and performance of the awarded contracts.
In 2008–2010 Dimitrov, Petrov & Co.’s Public Procurements team successfully advised and represented one of the world’s leading producers of mobile communication technologies in obtaining two complex multi-million public procurement contracts co-funded by the Bulgarian Government and the European Union. The client received the law firm lawyers’ advice for the establishment of the necessary Consortia with its partners, preparation of the tender offers and representation at the opening of the tenders. The contracts were definitively awarded to the client after the successful outcome of extremely complicated, contentious appealing procedures before the Commission for Protection of Competition and the Supreme Administrative Court.
Since 2007 Dimitrov, Petrov & Co.’s team has been involved in consulting a leading Italian contractor specializing in railway construction. The client was awarded a contract under the Conditions of Plant and Design-Build (FIDIC Yellow Book) for an ISPA-funded railway project evaluated at more than 160 million euro. The team’s work has included full-scale services, including on all public procurement matters.
Since 2004 Dimitrov, Petrov & Co.’s team has been the exclusive public procurement advisor of a major medical products supplier. The client’s turnover of several million euro per year is accumulated entirely from procurement contracts awarded in tendering procedures, in whose numerous and diverse phases the firm has been involved from the beginning to the very end of the process.
On March 27, 2020, Ordinance No. РД-02-20-1 of March 5, 2020 on the conditions and procedure for determining the proportions and location of the easement strips and the special regime for the exercise of easements over water supply and sewerage pipelines (networks) and facilities outside towns and villages (the “Ordinance”) entered into force. Тhe relations connected to the... view more
In mid-April one of the two biggest and most prestigious legal guides worldwide, The Legal 500, released its rankings for the region of Europe, Middle East and Africa for 2020. view more
On November 15, 2019 the amendments to Ordinance No 2 of 2003 on Commissioning of constructions in the Republic of Bulgaria and minimum warranty periods for completed construction and installation works, facilities and construction sites (the “Ordinance”) entered into force. The adopted amendments aim at standardizing the administrative services for the commissioning of fourth and fifth... view more
The Myth of the General Invalidity of the Waiver of Future Right. Set-off in the Light of the Waiver of Future Right
Edition:Commercial and Contractual Law Digest, 2019, book 8, book 9
The problem of the validity of the waiver of a future right through a contractual clause has great practical importance. Bulgarian case law and legal theory are consistent in the view that the waiver of future right is void. This stance is problematic in the context of rapidly developing and complicated economic relations. If we rephrase the US Supreme Court Justice Mr Holmes: Тhis is a wrong interpretation that “no lapse of time or respectable array of opinion should make us hesitate to correct”. The law should be applied in a way that is appropriate for its time.
Bulgarian applicable substantive law does not contain a general rule stipulating that a waiver of future rights is invalid. The general legal provision which sets out the rules on invalidity of contracts does not in principle forbid the waiver of future rights (it doesn’t even mention it). However, Bulgarian law explicitly proclaims the freedom of contract as an important general principle.
It is true that there are several specific rules where, under specific circumstances, a waiver of a future right is considered invalid. Such provisions are found in various substantive and procedural regulations, such as the Civil Procedure Code, Obligations and Contracts Act, Labour Code, Consumer Protection Act, Ownership Act and others.
However, if the waiver of a future right was invalid as a general rule, why would we find so many explicit rules rendering the waiver invalid in specific cases? Indeed, there are also a number of situations where the law does treat the waiver of future rights as valid. It’s apparent that where the law explicitly states that a waiver of a future right is invalid, it’s just an example of an exception to the general rule – that a waiver of future rights is admissible.
The general invalidity of the waiver of a future right concept can easily be tested by applying a specific legal institute. If we take the set-off, in some cases the debtor may be interested in maintaining its receivable due to the fact that set-off may be less favourable to it (for example, if its receivable bears interest). Under the Bulgarian law, the set-off takes effect from the moment the set-off was possible. Thus, when a set-off statement is issued, the interest would be discharged. Therefore, the party whose receivable bears interest will benefit from introducing a contractual clause which disallows the right to set-off.
Many waiver of a future right clauses can be found in public-private partnership contracts (e.g. Article 31.1 of the Sofia Airport Concession Agreement). Such clauses are essential for the viability of the modern forms of public-private partnership.
In fact, the waiver of future rights is often at the heart of the contractual relationship between the parties and frequently is a part of the contractual consideration - the obligations that a party undertakes under a particular contract in order to induce the other party to the contract to undertake correlated obligations. This makes it clear that the thesis of the invalidity of the waiver of future rights does not take into account the economic needs and business purposes that underpin the contractual relations in the civil and commercial turnover.
*This article is in Bulgarian.
Preparation for take-off. The concession procedure of Sofia Airport attracted strong bidders however the choice should not be limited to the price only
Author: Emil Petrov
Commented by: Hristo Nihrizov
*This article is in Bulgarian
Doing Business in Europe
Subject:Corporate Law. Mergers & Acquisitions
Published at:Sweet & Maxwell