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What does the COVID-19 state of emergency mean for public procurement procedures?

Ana Popa
Ana Popa
Dan Cristea
Dan Cristea

A state of emergency was declared in Romania on 16 March 2020 by Presidential Decree No. 195/2020 (the “Decree”), published in the Official Gazette No. 212/2020.

The Decree institutes a 30-day state of emergency throughout the Romanian territory and establishes first emergency measures of direct and immediate application, as well as measures of gradual applicability with a view to preventing the spread of COVID-19 and handling the consequences of this epidemic.

The Decree impacts public procurement of medicinal products and equipment required to fight the COVID-19 epidemic; a series of usual public procurement rules are subject to major amendments, as summarized below.

1. Direct procurement of materials and equipment required to fight the COVID-19 epidemic

The first emergency measures of direct application include, inter alia, the possibility granted certain authorities to procure directly and irrespective of the estimated value of the procurement, materials and equipment required to fight the COVID-19 epidemic, as follows:

– Central public authorities and legal entities in which the State is a majority shareholder may procure directly materials and equipment required to fight the COVID-19 epidemic;

– Public health directorates shall procure the materials necessary in the epidemic period by direct procurement procedure, with funds secured from the Ministry of Health;

– Health units shall procure the materials and medicinal products necessary in the epidemic period by direct procurement procedure, with funds secured from the Ministry of Health;

– The ministries which have their own health system are allowed to conduct direct procurement for their own health units with funds from both their own budgets and from the budgets of the health units.

2. Main changes brought by the Decree

Unlike Government Emergency Ordinance No. 11/2020 on medical emergency inventories, as well as certain measures related to the establishment of quarantine (“GEO No. 11/2020”) according to which the centralised procurement of products related to medical emergency inventories was being conducted by the National Office for Centralised Procurement (“ONAC”), via a negotiation procedure without a prior publication of a contract notice, the Decree establishes either the possibility, or the obligation, as applicable, for the public health directorates and health units to procure directly the materials and medicinal products necessary to fight the COVID-19 epidemic.

The prices of medicinal products procured by the health units for the treatment of patients infected with COVID-19 may exceed the maximum prices approved by the Ministry of Health. Nevertheless, the prices of medicinal products and medical equipment may be capped throughout the duration of the state of emergency, and the central public authorities may requisition units producing materials and pieces of equipment required to fight the spread of the COVID-19 virus.

As to the public procurements made with EU funds, the beneficiaries of EU funds affected by the adoption of emergency measures caused by the epidemic become able to decide, together with the management authorities/intermediate bodies, to suspend the concluded financing contracts.

3. Procuring medical emergency inventories according to GEO No. 11/2020

Subsequent to the termination of the state of emergency, the procurement of medical emergency inventories shall be conducted in accordance with GEO No. 11/2020, via centralised procurement, by ONAC, in accordance with the laws on public procurement. GEO No.11/2020 distinguishes between procurements via the emergency system required to handle the COVID-19 epidemic, and the general procurements to establishing and replenishing medical emergency inventories.

More specifically, the framework contracts shall be awarded by ONAC as follows:

– On an emergency basis, via the negotiation procedure without a prior publication of a contract notice, according to Article 68(1)(f) read together with Article 69(4) and Article 104(1)(c) of Law No. 98/2016 on public procurement (“Law No. 98/2016”), with a view to covering the needed medical emergency inventory products listed in Appendix to GEO No. 11/2020 (e.g. thermal scanners, isolation rooms, isolation stretchers, medical ventilators, medical monitors, syringe infusion pumps, overalls, protective visors, gloves, protective masks, disinfectants), until the maximum quantities set forth for each category in the Appendix are reached; the amounts necessary for such procurements shall be secured by supplementing the Ministry of Interior’s budget for the General Inspectorate of Emergency Situations with RON 225,000;

– Where necessary in order to meet the needs set forth under the List of Medical Emergency Inventory Products, by implementing one of the award procedures provided under Article 68(1) of Law No. 98/2016 (i.e. open tender; restricted tender; competitive negotiation; competitive dialogue; innovation partnership; negotiation without the prior publication of a contract notice; design contests; simplified procedure).

For the procurement of medical emergency inventories, the General Inspectorate of Emergency Situations and the Ministry of Health provides ONAC with the following: (i) list of required products, (ii) estimated value for each product, (iii) technical specifications (iv) specialists for technical support throughout the organisation and conduct of the award procedures, and (v) members of the assessment committees. The General Inspectorate of Emergency Situations remains liable for monitoring the framework contracts and concluding subsequent contracts.

Ana Popa, Managing Associate ȚUCA ZBÂRCEA & ASOCIAȚII
Dan Cristea, Partner ȚUCA ZBÂRCEA & ASOCIAȚII

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