Regulation PR No. 30/53 on Pricing in Public Contracts

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Alyson Angela Dennis
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1 Regulation PR No. 30/53 on Pricing in Public Contracts of 21 November 1953 (BAnz 1953, No. 244, p. 1) last amended by Regulation PR No. 1/89 of 13 June 1989 (BGBl, part I, p. 1094) To ensure stricter observance of market principles in public contracts the following is decreed in accordance with section 2 of the Price Art of 10 April 1948 (WiGBl, p. 27)/3 February 1949 (WiGBl, p. 14)/21 January 1950 (BGBl, p. 7)/8 July 1950 (BGBl, p. 274)25 September 1950 (BGBl, p. 681)/23 December 1950 (BGBl, p. 824)29 March 1951 (BGBl, part I, p. 223) as amended by section 37 of the Act on Investment Assistance by Industry of 7 January 1952 (BGBl, part I, p. 7): Section 1 General Principle (1) In determining the prices of goods and services supplied or to be supplied under puplic contracts, market prices according to section 4 below shall, in principle, be given preference over cost prices according to sections 5 to 8 below. (2) Where the nature of the contract permits, fixed prices shall be negotiated. Prices shall be fixed when the contract is made. (3) No prices exceeding those allowable under the provisions of this Regulation shall be asked, promised, negotiated, accepted or granted for goods and services supplied or to be supplied under public contracts. Section 2 Scope (1) Public contracts within the meaning of this Regulation are contracts awarded by the Federal Republic, the Länder, the municipalities or the other corporations under public law.

2 - 2 - (2) The Federal Minister of Economics, in agreement with the federal minister concerned, may direct that the provisions of this Regulation shall not apply to contracts awarded by enterprises which are or are operated by corporations under public law, provided that these enterprises sell their products or services in competition with private enterprises. (3) The provisions of this Regulation shall apply to contracts awarded by foreign forces and the civilian components of such forces (as defined in paragraph 1b of article I of the Agreement between the Parties of the North Atlantic Treaty Regarding the Status of Their Forces of 19 June 1951 (BGBl 1961, part II, pp. 1183, 1191) which are stationed in the territory of the Federal Republic of Germany in accordance with international agreements. (4) The provisions of this Regulation shall also apply 1. where the contracting public agency so requests, to subcontracts under public contracts, provided that the subcontractor is notified of this request before or at the time when the contract is made or that his consent is obtained afterwards; 2. to requisitions ordered by German authorities, provided, however, that without the contractor s consent prices shall not be lower than those allowable under this Regulation. (5) Without prejudice to subsections (3) and (4) of section 12 below, the provisions of this Regulation shall not apply to construction contracts within the meaning of Regulation PR No. 32/51 on Pricing in Public and Publicly Funded Construction Contracts of 11 May 1951 (BAnz No. 92 of 17 May 1951) as amended by Regulation PR No. 5/52 of 18 January 1952 (BAnz No. 91 of 13 May 1952).

3 - 3 - Section 3 Applicability of Price Provisions Public contracts shall be subject to the general and special price provisions. Section 4 Prices of Commercial Goods and Services (1) Where public contracts are for commercial goods or services, prices shall not exceed current market prices allowable under price law. (2) Where contracts are for goods or services which, given similar conditions, are essentially comparable with commercial goods or services, prices shall be reduced or may be increased to the extent that this is warranted by variations from the commercial goods or services. (3) The contracting public agency shall be granted the same terms and conditions especially quantity and value discounts cash discounts and special terms of delivery as would under identical conditions normally be granted to nonpublic customer. (4) Prices shall be lower than or may exceed those according to subsections (1) to (3) above if this is warranted in view of the specific cost situation of the contract. Section 5 Cost Prices (1) Cost prices shall be based on the reasonable costs incurred or expected to be incurred by the contractor and shall be used only in exceptional cases 1. where prices according to sections 3 and 4 above cannot be determined, or 2. where there is a shortage or competition among bidders is restricted and, as a result, pricing according to section 4 above is more than insignificantly affected.

4 - 4 - (2) Where the contracting public agency and the contractor disagree as to whether conditions as specified in paragraph 2 of subsection (1) above exist, a decision shall, on application, be made 1. by the Federal Minister of Economics if the shortage or the restriction of competition affect or may affect prices in more than one land; 2. in all other cases, by the competent pricing authority in the area where the contractor is located. (3) Where the nature of the contract permits, a cost price calculation shall be submitted together with the bid. (4) Where contracts for identical goods or services are awarded to several contractors under cost price terms, identical prices shall, as a rule, be negotiated if conditions are identical. Goods or services shall be considered identical if the respective contracts specify essentially the same quantities, delivery periods and terms of delivery and payment. In determining the prices, the coat prices of those enterprises to which contracts are to be awarded or have been awarded shall be considered. The price finally established shall be based on the cost price of an efficient enterprise. (5) In awarding contracts in follow-up to a contract awarded under cost price terms (followup contracts), it shall in each case be determined whether section 4 above is applicate. (6) The negotiated cost prices may be 1. fixed prices or target prices according to section 6 below; 2. cost reimbursement prices according to section 7 below.

5 - 5 - Section 6 Fixed Prices and Target Prices (1) Whenever possible, cost price contracts shall provide for fixed prices. (2) Fixed prices shall be determined on the basis of cost calculations and shall be fixed at the time when the contract is made or immediately afterwards. (3) Where a fixed price cannot be established, the contract shall be made on the basis of a tentative cost price (target price). Before the termination of production, as soon as the basic factors bearing on the cost calculation can be assessed, a fixed price shall be negotiated, if possible, to replace the target price. Section 7 Cost Reimbursement Prices (1) Cost reimbursement prices shall only be allowable where prices cannot otherwise be determined. A maximum reimbursable amount may be established by mutual agreement for all or part of the costs. (2) Where the nature of the contract permits, agreements on cost reimbursement prices shall provide that for certain cost categories fixed rates shall be established. Section 8 Determination of Cost Prices Where contracts provide for cost prices (sections 5 to 7 above), the Rules for the Determination of Cost Prices in the Schedule to this Regulation shall be observed. Section 9 Auditing of Prices (1) Where the pricing and price review authorities so request, the contractor shall provide them with evidence showing how the price has been arrived at. The records produced

6 - 6 - shall show that the price is allowable under the provisions of this Regulation. Unless other provisions stipulate a longer period, these records shall be retained for at least 5 years. (2) The pricing and price review authorities may make investigations to determine whether the provisions of this Regulation have been complied with. The contractor and the persons responsible for the management of the enterprise shall furnish all information required for this purpose. (3) The pricing and price review authorities may examine the contractor s records, have copies taken of or extracts made from these records and inspect the contractor s plants. Section 10 Determination of the Reasonableness of Cost Prices by Contracting Public Agencies (1) The contracting public agency, in consultation with the competent pricing and price review authority, may carry out an examination to determine whether a cost price conforms to the provisions of this Regulation if it has been authorized to do so generally or in a particular case by the Federal Minister of Economics. The second sentence of subsection (2) above an subsection (3) of section 9 shall apply analogously. As far as fixed-price contracts are concerned, such an examination shall be permissible only between the time of submission of the bid and the time when the contract is made. The same shall apply to target-price contracts and cost-reimbursement-price contracts as far as agreed fixed rates for certain cost categories are concerned. (2) The inconvenience caused to the contractor by examinations according to subsection (1) above shall be in reasonable proportion to the economic importance of the contract to the contracting public agency and the contractor. (3) Where the contractor so requests, the competent pricing and price review authority shall participate in the examination of the cost prices. (4) Where the contracting public agency and the contractor disagree about the result of the examination, they shall first try to reach an amicable agreement on a mutually acceptable

7 - 7 - cost price. Failing this, the competent pricing authority in the area where the contractor is located shall establish the cost price on the application of either party. Section 11 Contraventions Contraventions of the provisions of this Regulation shall be punishable in accordance with the penal provisions of the Act to Simplify the Law Pertaining to Economic Offenses of 26 July 1949 (WiGBl, p. 193) as amended by the Act of 25 March 1952 (BGBl, part I, p. 188)/ 17 December 1952 (BGBl, part I, p. 805). Section 12 Entry into Force (Not translated)

Public Procurement Act

Unofficial translation Ministry of Trade and Industry, Finland Chapter 1 - General Provisions Section 1 - Scope of application and objectives Public Procurement Act (1505/1992; amendments up to 1530/2001