Public Procurement Act, ss. 71, 90 and 93, accessibility in the definition of the procurement object, quality-assurance certificates and award criteria

Section 1 of the Act requires the state and municipal authorities and the other contracting authorities named in section 5 to tender their procurements as the Act provides. Section 26 applies chapters 1 to 10 and 14 to 16 of the Act to procurements of at least the EU thresholds. Section 71 forms part of chapter 9 of the Act on the preparation of procurement, the invitation to tender and the description of the procurement object.

Section 99 applies chapter 11 of the Act, in addition to Parts I and IV, to goods, services and works procurements below the EU thresholds that reach the national thresholds. Section 71(1) requires a procurement object intended for natural persons to be defined, save in duly justified cases, so as to take account of accessibility for disabled users and design for all users.

Section 71(1) requires the procurement object to be defined by reference to the accessibility requirements that other legislation or an act of the European Union makes mandatory. Section 71(1) requires the definitions of the procurement object to give tenderers equal opportunities to take part and not to restrict competition in public procurement without justification.

Section 71(2) requires the definitions of the procurement object to be drawn up from performance or functional requirements, by reference to standards and other technical definitions each marked "or equivalent", or by a combination of the two. Section 71(3) bars a definition of the procurement object that names a particular manufacturer or origin, or refers to a trade mark, patent, product type or specific method, in a way that favours or disadvantages particular tenderers.

Section 71(3) allows such a reference only exceptionally, where the object of the contract cannot otherwise be described precisely and clearly, and then with the words "or equivalent". Section 90(2) lets the contracting authority ask a candidate or tenderer for a statement of its quality-assurance measures.

Section 90(2) requires a contracting authority that demands certificates from independent bodies that a candidate or tenderer meets quality-assurance standards, including accessibility for disabled persons, to refer to quality-assurance systems based on the European standard series.

Section 90(2) requires the contracting authority also to accept equivalent certificates from bodies in other member states of the European Union and certificates of equivalent quality-assurance measures that candidates and tenderers submit.

Section 90(3) requires the contracting authority to accept other evidence of quality-assurance measures where the candidate or tenderer could demonstrably not obtain the certificates within the time set, for reasons that are not its own, and shows that the measures correspond to the requirements of the quality-assurance standards.

Section 93(2) lets the contracting authority set price-quality comparison criteria on quality, which may include accessibility and design for the requirements of all users.

Section 93(4) requires the contracting authority to state its comparison criteria and their relative weighting in the contract notice, the invitation to tender or the invitation to negotiate, allows the weighting to be given as a reasonable range, and requires the criteria to be listed in descending order of importance where the weighting cannot be determined for an objective reason.

Section 93(5) requires the comparison criteria to relate to the subject matter of the procurement, to leave the contracting authority no unrestricted freedom of choice and to be non-discriminatory. Section 139 gives the supervision of compliance with the Act to the Competition and Consumer Authority.

Section 154 lets the Market Court, where a procurement breaches the Act, annul the contracting authority's decision, forbid it to apply an erroneous term in a procurement document, order it to correct its procedure, order it to pay a compensation payment, declare the contract ineffective, order it to pay a penalty payment to the State and shorten the contract term.

Section 154 allows the ineffectiveness remedy, the penalty payment and the shortening of the contract term only for procurements above the thresholds the section names. Section 154 allows those remedies only if the unlawful procedure has affected the outcome of the procurement or the position of a party. Section 155 limits the compensation payment, without a special reason, to ten percent of the value of the procurement contract. Section 158 limits the penalty payment to ten percent of the value of the procurement contract or concession contract.