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Awarding the aquisition contracts by private beneficiaries under projects financed from structural instruments

In the Official Gazette of Romania no. 650 of 22 October 2013 has been published the Order of Minister of the European Funds no. 1120/2013 regarding the approval of the simplified procedure applied to private beneficiaries under the projects financed from structural instruments, the “Convergence” objective, as well as projects funded by the EEA and Norwegian Financial Mechanisms for awarding contracts of supplying, works or services.

The Order repeal in its entirety the Order of the Ministry of European Affairs no. 1050/2012 regarding the approval of the awarding procedure applied to private beneficiaries of projects financed from structural instruments, the “Convergence” objective and any contrary provisions.

From the entry into force of the Order, the private beneficiaries of EU funded projects mentioned above, which have ongoing procurement not covered by art. 9 letter. c) and lit. c1) of GEO no. 34/2006, have no obligation to continue them according to Order no. 1.050/2012, with the possibility of canceling the procedure.

If the private beneficiaries still decide to continue procurement, they will subject to the law in force at the time of initiation, leaving them under its incidence until the completion of the procedure.

The Managing Authorities / program operators are obliged to modify the operational procedures and any other corresponding regulations, meaning to comply them with the simplified procedure within 5 working days from the entry into force of the Order and to carry out its provisions .

The simplified procedure regulates the following aspects:

– Field of application;
– Direct procurement;
– Applicable principles;
– Avoidance of conflicts of interest;
– Steps for simplified procedure;
– Procurement file;
– Supporting documents for claims.

FIELD OF APPLICATION

The simplified procedure describes the principles and minimum steps that private beneficiaries need to go through, namely those without the legal entities as contracting authority under art. 8 GEO no. 34/2006, that purchase goods, services or works, under projects financed from structural instruments, the “Convergence” objective and under the EEA and Norwegian financial mechanisms.

The private beneficiaries who purchase services or works apply GEO. 34/2006 if they fulfill cumulatively terms of art. 9 letter. c) and lit. c1).

If the estimated value of the acquisition, excluding VAT, exceeds the thresholds provided by art. 19 of GEO. 34/2006 (RON equivalent of EUR 30,000 excluding VAT for each purchase of goods or services, or 100,000 euros excluding VAT for each purchase of works), the private beneficiaries apply the simplified procedure, namely:

– In the case of supply contracts, the private beneficiaries apply the simplified procedure without existing a limit value from which are applicable the provisions of GEO no. 34/2006;

– In the case of service and works contracts, the private beneficiaries apply the simplified procedure if they don’t fulfill cumulatively terms of art. 9 letter. c) and c1) of GEO. 34/2006.

The legislator draws attention to the following:

– It is forbidden to divide a contract in several smaller contracts, with the same object, in order to situate them  below the thresholds stipulated by GEO. 34/2006;

– The contract which covers both the supply of products and services / execution of works is considered a service contract or a works contract if the estimated value of services / works is greater than the estimated value of the goods specified in the contract, and will be applicable the provisions of GEO no. 34/2006, where appropriate;

– In all cases, framing the procurement contract is performed according to the highest estimated value.

The provisions of the simplified procedure shall be completed with the relevant provisions of specific legislation depending on the object of procurement (eg sale – buying land, other property, etc.)..

DIRECT AQUISITION

If the estimated value of the acquisition, excluding VAT, does not exceed the thresholds stipulated in art. 19 of GEO no. 34/2006 for each purchase, the beneficiary directly buys goods, services or works based on supporting documents (eg order, tax receipt, invoice, contract, etc..), without being mandatory to sign a contract.

In this case, the procurement file will contain:

– Note regarding the estimated value (the value is updated at the time of purchase, where appropriate);

– The acquisition documents, including documents proving the fulfillment of contractual obligations (eg official reports regarding the reception of services and works, official reports of delivery-reception etc..).

THE APPLICABLE PRINCIPLES

Throughout the acquisition process, before taking any decision, you must consider the following principles:

– The principle of transparency – disclosure to the public of information regarding simplified procedure;
– The principle of economy – requires minimizing the cost of resources allocated to achieve the expected results of an activity, while maintaining adequate quality of those results;
– The principle of effectiveness – involves ensuring an optimal ratio between the result (quality) and financial resources;
– The principle of effectiveness – refers to the degree of fulfillment of specific objectives for each planned activity, in the sense of obtaining the desired results.

AVOIDING THE CONFLICT OF INTEREST

The private beneficiaries as individuals / companies, have the obligation to take all necessary measures to avoid the situations likely to give rise to a conflict of interest, being applicable provisions of art. 14 and art. 15 of GEO no. 66/2011, corroborated to a. 8 of the Methodological Norms approved by Government Decision no. 875/2011.

THE SIMPLIFIED PROCEDURE STEPS

The simplified procedure involves three main steps, detailed regulated by the Order:

Step 1 – Developing technical specifications and verification of the estimated value;
Step 2 – Evaluate the market: publishing an announcement on the website – www.fonduri-ue.ro, the “private purchase” section, accompanied by technical specifications (the private beneficiary may submit on the same day as the publication of the announcement an invitation to simplified procedure) , analysis of tenders, developing award supporting notes.
Step 3 – Signing the contract of acquisition: detailed rules applicable to the aquisition contract, both in terms of its end, and in terms of price adjustment;
Step 4 – Implementation of the aquisition contract: strict rules regarding the contract of purchase.

THE AQUISITION FILE

At the end of the procedure will be made the procurement file that will contain, for simplified procedures (for all types of contracts, namely, supply, services and works), having an estimated value exceeding the threshold provided in art. 19 of GEO. 34/2006, the following documents:

– Technical specifications;
– Note regarding the updated estimated value, proof of the announcement;
– Explanatory note for the award;
– Statement on own responsibility, from which results that had been not violated the provisions relating to conflict of interest;
– Original offers;
– Procurement contract;
– Additional documents (where appropriate) and other relevant documents.

SUPPORTING DOCUMENTS FOR REIMBURSEMENT CLAIMS

The documents filed by the the private beneficiary in order to verify administrative costs incurred in the financing contract (for paper documents, one copy) are: note regarding the updated estimated value, proof of notice; award explanatory note; procurement contract, having as Annex the chosen offer, additional documents (where applicable); own responsibility statements showing that had not been violated the provisions relating to conflict of interest, CD with scanned documents (PDF format) that make up the procurement file, including the documents proving the fulfillment of contractual obligations (eg official reports regarding the reception of services and works, , official reports of delivery-reception etc..).

::The Source: JURIDICE.ro

Corina PESCARU

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