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Changes to the public acquisitions law

Monitorul Oficial al Romaniei, Part I, No 827 / 10 December 2012has
published Government Emergency Ordinance No 77 / 2012 which amends and supplements Government Emergency Ordinance No34 / 2006, regarding the award of public acquisition contracts, public works concession contracts and services concession agreements (hereinafter the
“Ordinance”).

The Ordinance has come into full force and effect on 1 January 2013.

One of the major amendments contained in this legislative act refers to the assimilation of public acquisition contracts into administrative acts.  The Ordinance also regulates the qualification of State-owned companies or of companies the share capital of which is fully or mostly owned by a contracting authority or another public authority as being the contracting authority.

Starting 1 January 2013 the thresholds applicable for the award of works and services agreements by an entity with no capacity of contracting authority have been heightened to EUR 5,000,000 in the case of works contracts and to EUR 200,000 in the case of services agreements.  This change has occurred as a result of the need to align national regulations to European legal requirements, i.e. Commission Regulation (EU) No 1251/2011 of 30 November 2011 amending Directives 2004/17/EC, 2004/18/EC and 2009/81/EC of the European Parliament and of the Council in respect of their application thresholds for the procedures for the awards of contract.  Commission Regulation (EU) No 1251/2011 became effective on 1 January 2012 and is binding in its entirety and directly applicable in all Member States.

The estimated value of services agreements and works contracts shall include the amount covering miscellaneous and unforeseeable operations as defined by the designer in the general cost estimate without departing from the provisions of Art.122 (i) and Art.252 (j) of Government Emergency Ordinance 34/2006.

As regards the content of the contract award documents, the following shall be deemed unwritten clauses:

– qualification and/or selection requirements / criteria mentioned in the tender specifications or descriptive documentation without being recorded in the information sheet / invitation to tender / announcement of tender offer;

– any appraisal factor included in the contract award documents, which is not mentioned in the invitation to tender / announcement of tender offer.

Whenever qualification and selection criteria are amended / supplemented, errata shall be mandatorily published and the period required for the submission of candidatures / tender offers shall be extended.  The Ordinance also provides that, when the information contained in the invitation to tender / announcement of tender offer is amended / supplemented, such amendments shall be made by way of clarification and publication of errata.

The time-limit for the appraisal of tenders and the establishment of the winning tender has been extended from 20 days to 25 days from the opening date of tenders.

The threshold taken into account in the case of a tender deemed to have an unusually low price in comparison with the estimated value of the contract shall be 70% as to formerly 85% of the estimated value of the contract.

The Ordinance provides for a new case in which the contracting authority has the obligation to cancel the application of the procedure, which refers to serious infringement of the relevant legal provisions, thus affecting the procedure.  Specifically, the contracting authority shall cancel the application of the procedure if the decisions it has made during the appraisal of tenders are based on qualification and/or selection requirements / criteria which have not been included in the information sheet / invitation to tender / announcement of tender offer.

As regards the penalty referring to the withholding of percentages / amounts from the guarantee required for participation in the tendering process when the Council rejects the claim, filed by the party concerned, on the merits of the cause, The Ordinance stipulates that such penalty shall also apply when the claimant renounces its claim, excepting the case in which such renunciation is the result of the contracting authority’s undertaking of the necessary remedial measures.

In the event that the Court finds the claimant to be right, the contracting authority shall return the amounts withheld from the abovementioned guarantee within an at least 5-day term of the Court ruling date.

LEGAL ALERT by Duncea, Stefanescu & Associates / MAZARS

* You may find Romanian, German and French versions of the newsletter in Mazars’ archive.

* LEGAL ALERT contains a selection of the latest major issues occurred in the Romanian legislative framework, is intended only to provide information and, hence, shall not be deemed to provide professional advice or consultancy. Therefore, we assume no responsibility in this respect.

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