Legal & Tax Alerts

Legislative amendments in the field of Public Procurement

Starting today, 30 August 2021, new regulations in the public procurement field came into force[1].

The new regulations bring amendments to the main normative acts in the field[2]. The most important amendments include:

establishing the obligation of the contracting authority/ entity to conclude the contract with the successful bidder, further to the issuance by the National Council for Solving Complaints (“NCSC”) or by the court of a decision on maintaining the result of the award procedure, even if the decision has been challenged and the case has not been finally settled;

reduction of certain procedural terms, amongst which: (i) the deadline for publishing the decision concerning the annulment of the procedure for the award of the public procurement contract/ sectoral contract/ framework agreement, (ii) the deadline for the contracting authority/ entity to carry out the decisions issued by the NCSC/ the court, (iii) the maximum period by which the deadline for drafting the procedure report or the intermediate report may be extended;

replacement of the obligation to present tax certificates for all secondary offices/ working units with an affidavit of the economic operator regarding the fulfilment of the obligations to pay taxes, fees or contributions due to the general consolidated budget;

increasing the maximum limit of the bond that has to be constituted for the settlement of complaints filed after the deadline for submitting the participation requests/ tenders/ projects (for the contracts the estimated value of which is equal to or higher than the value thresholds established by the primary legislation) from RON 880,000 to RON 2,000,000;

imposition of the sanction of inadmissibility of new evidence submitted during challenges against NCSC decisions, over the evidence submitted during the complaint;

reduction of the fine that may be imposed on the contracting authority/ entity by the court when the nullity of the contract had to be ascertained, but the court deems that overriding reasons of public interest require the maintenance of the effects of the contract; the range of the fine is reduced from 2% – 15% to 1 – 5% of the value of the contract’s scope;

introducing the possibility of the contracting authority/ entity to order measures against the individual(s) involved in the public procurement/ sectoral procurement/ concession process, which has been subject to a contravention or damages applied to/ payable by the contracting authority/ entity, only if the courts establish that such individuals performed or omitted to perform, with guilt, consisting of gross negligence, any act or fact in connection with the exercise, under the law, of their duties;

removal of the possibility of extending the deadline for the submission of supporting documents contained in the ESPD (European Single Procurement Document) in the case of simplified procedures;

introducing the possibility for the contracting authority, in case of public procurement contracts, to apply the competitive negotiation procedure or the competitive dialogue procedure for the procurement of works, products or services also after the carrying out a simplified procedure in which only non-compliant or unacceptable tenders have been submitted;

removal of the limitations on the qualification and selection criteria that can be established by the contracting authority/ entity when carrying out a simplified procedure for the award of a public procurement contract/ sectoral contract;

clarifying the meaning of the concept of subcontractor, including by mentioning that the making available of an equipment or the supply of materials/ goods within a public procurement contract/ sectoral contract/ concession contract, is not considered subcontracting;

establishing the obligation of automatic publication by SEAP (Electronic System of Public Procurement, in Romanian: Sistemul Electronic de Achizitii Publice) of the conditional compliance notices and the final compliance notices issued by the National Agency for Public Procurement.

 

[1] Government Ordinance no. 3/2021 on amending and supplementing the legislation in the field of public procurement, published in the Official Gazette of Romania, Part I, No. 821.

[2] The new regulations amend and supplement the following normative acts: (i) Law no. 98/2016 on public procurement, (ii) Law no. 99/2016 on sectoral procurement, (iii) Law no. 100/2016 on works concessions and service concessions, (iv) Law no. 101/2016 on remedies and appeals in relation to the award of public procurement contracts, sectoral contracts and works concession and service concession contracts, as well as for the organization and functioning of NCSC, (v) Government Emergency Ordinance no. 98/2017 on the ex-ante control function of the process of awarding public procurement contracts/ framework agreements, sectoral contracts/ framework agreements and contracts for works concession and service concession.

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