Post on 18-Mar-2018
April 9, 2013
Public tendering and legal aspects of project business in Romania
Ligia Cecilia Popescu/Fabiola Meister Wolf Theiss Bucharest, Romania
Public Procurement
plays key role in new Government’s
objectives to improve business
environment in Romania!
TO
PIC
S
1. Relevant Legislation - Government Emergency
Ordinance no. 34/2006 (GEO 34/2006)
2. Rules for the implementation of GEO 34/2006
3. Underlying principles according to GEO 34/2006
4. Art 8 GEO 34/2006 – contracting authorities
5. Government Emergency Ordinance 77/2012 –
significant changes in line with European
legislation
6. Remedies and Enforcement
RELEVANT LEGISLATION AND IMPLICATIONS OF BEING A EU MEMBER STATE • The most important legal act regarding public procurement procedures
is Government Emergency Ordinance no. 34/2006 on the awarding of
public procurement contracts, works concession contracts and services
concession contracts, with subsequent amendments – it represents the
general legal framework for public procurement in Romania, as
amended.
• As a EU member state, Romania has a varied legislation on public
procurement, especially due to the transposition obligation of the
European directives. All the regulatory acts are in accordance with the
Treaty on European Union, with the Treaty on the Functioning of the
European Union, as well as with the directives on public procurement.
RULES FOR THE IMPLEMENTATION OF GEO 34/2006 Government Decision no. 925/2006 on the approval of the rules for the
implementation of the provisions regarding the award of public
procurement contracts, public works concession contracts and
services concession contracts
UNDERLYING PRINCIPLES ACCORDING TO GEO 34/2006
• GEO 34/2006 provides for the fundamental principles of the public
procurement procedures:
The principle of nondiscrimination and equal treatment means
ensuring the necessary conditions for effective competition, by
establishing and applying, throughout the award procedure, identical
rules, requirements and criteria for all economic operators, so that any
of them may participate in the award procedure and can enjoy equal
opportunities to become contracting parties.
UNDERLYING PRINCIPLES ACCORDING TO GEO 34/2006
• The principle of mutual recognition means accepting goods,
services and works which are legally offered on the European Union
market, diplomas, certificates and other documents issued by
competent authorities of other states, as well as technical
specifications, which are equivalent to those required at national level.
• The principle of transparency means making public all information
regarding the application of the award procedure especially in regards
to the opportunity to participate in the procurement process, the
elements of the tender documentation, as well as the result of the
procedure.
UNDERLYING PRINCIPLES ACCORDING TO GEO 34/2006
• The principle of proportionality means ensuring the correlation
between the customer's needs, the object of the contract and the
requirements requested to be fulfilled.
• The principle of the efficient use of the public funds means applying
the procedures for the award of contracts by way of competition and
using criteria that reflect the offers' economic advantages in order to
obtain the best value for money.
UNDERLYING PRINCIPLES ACCORDING TO GEO 34/2006
The relevance of these principles resides in their
creating the general legal framework for the awarding
of public procurement contracts. Moreover, according
to the legislation, any situation for which there is no
express regulation shall be interpreted through these
principles.
ART 8 GEO 34/2006 – CONTRACTING AUTHORITIES
Contracting authorities may be:
a) any governmental agency – public authority or public institution -
operating at central, regional or local level;
b) any body other than those stipulated under letter a), having legal
personality, which has been established for the specific purpose of
meeting needs in the general interest, lacking the industrial or
commercial character and which fulfills at least one of the following
conditions:
ART 8 GEO 34/2006 – CONTRACTING AUTHORITIES
• it is financed for the most part by a contracting authority as defined
under letter a) or by other body governed by public law;
• subordinated or subject to supervision by a contracting authority or by
other body governed by public law;
• entities where more than a half of the members of the board of
directors/supervisory body are appointed by a contracting authority or
by other body governed by public law.
ART 8 GEO 34/2006 – CONTRACTING AUTHORITIES
c) any association including one or more of the contracting authorities;
d) any public undertaking that carries out one or more of the following
activities: water, energy, transport and postal services;
e) any legal entity, other than those indicated under letters a) - d),
which carries out one or more of the following activities: water,
energy, transport and postal services, based on a special or
exclusive right.
ART 8 GEO 34/2006 – CONTRACTING AUTHORITIES
Legal entities that are not deemed to be contracting authorities now
have an obligation to comply with public procurement laws if
cumulatively they award services or works contracts that are financed
50% or more by a contracting authority and are worth at least
EUR 5,000,000 (for a service contract) or at least EUR 200,000 (for
works contracts)
GOVERNMENT EMERGENCY ORDINANCE 77/2012 – SIGNIFICANT CHANGES
1. Public Procurement Contract – an administrative contract;
2. New thresholds for the awards of contracts;
3. Publicity rules;
4. Awarding procedures;
5. Notification of direct acquisition over EUR 5,000;
6. Joint offers;
7. Selection Criteria;
8. Rules for Avoiding Conflict of Interest;
9. Remedies and Enforcement.
PUBLIC PROCUREMENT CONTRACT - AN ADMINISTRATIVE CONTRACT
GEO no. 77 re-classified the public procurement contract as an
administrative contract (as opposed to a commercial contract).This
means that the administrative courts will have the competence to handle
complaints against already-concluded public procurement contracts.
NEW THRESHOLDS FOR THE AWARDS OF CONTRACTS
GEO 77/2012 has fully implemented the 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.
NEW THRESHOLDS FOR THE AWARDS OF CONTRACTS
• Participation Notice shall be published in the EU Official Journal in
case the value of the contract exceeds the Lei equivalent of:
i. EUR 130,000 for supply or services contracts granted by authorities
and public institutions;
ii. EUR 400,000 for supply or services contracts granted by public
companies or other entities performing relevant activities in one of
the sectors of public utility – water, energy, transports and postal
services;
iii. EUR 5,000,000 for contracts for works, and concession of public
contracts.
PUBLICITY RULES The contracting authority must publish a Participation Notice in the SEAP
in the following cases:
i. procedures of Open, or Limited Public Tender, Competitive Dialogue,
or Negotiation with the prior publication of a Participation Notice are
launched in order to conclude a public procurement contract, or
framework agreement; or
ii. an electronic purchasing system is initiated, which means that the
public procurement procedure is carried out electronically on the
Electronic System of Public Procurement ("SEAP") and all the users
registered with SEAP participate to such procedure; or
iii. a Tender for a Solution Project is organized.
AWARDING PROCEDURES
The contracting authorities have an obligation to specify in the
participation notice and within the tender documentation the awarding
criteria and procedure. These may be:
i. Open Public Tender – takes place in a single stage and any
interested provider can submit a tender;
ii. Limited Public Tender – consists of two stages, and only the bidders
selected by the contracting authority at the first stage will be invited
to submit bids in the second stage;
iii. Competitive Dialogue – any interested provider can submit a bid; the
contracting authority may perform the dialogue only with the
accepted candidates and only the candidates selected by the
contracting authority from the accepted candidates are invited to
make the final offer;
AWARDING PROCEDURES
iv. Negotiation – the contracting authority discusses and negotiates the
contractual clauses, including the price, with the candidates selected
from suppliers, contractors and providers; the negotiation may be
with or without the publication of a participation notice;
v. Offer Request – a simplified procedure according to which the
contracting authority requests offers from several suppliers,
contractors and providers;
vi. Tender for a Solution Project – allows the contracting authority to
obtain a plan or a project which was selected by a jury on a
competitive basis, especially in the territorial planning, urban, and
zoning sectors.
AWARDING PROCEDURES
As a general rule, contracting authorities shall apply the open or
restricted procedure. Only in the specific circumstances, expressly
provided by the legislation, the contracting authorities may award the
public contracts by means of other award procedures.
NOTIFICATION OF DIRECT ACQUISITION OVER EUR 5000
According to the provisions of GEO 34,
the contracting authority may procure
products, services, or works without a
tender, if the value of the acquisition
does not exceed the Lei equivalent of
EUR 15,000 for each acquisition.
Any direct acquisition over EUR 5,000
(without VAT) is required however to be
recorded in the SEAP.
JOINT OFFERS
Art 44. of GEO 34/2006 allows economic operators to associate for the
purpose of submitting a joint offer, without having the obligation to
officially register their association.
The contracting authority is entitled to request that the association/joint
venture is formally registered only in case the joint offer is declared as
winner, and only if such measure represents a condition necessary for
the appropriate performance of the contract.
Without any derogation from its liability with regard to the manner of
performance of the future public procurement contract, the bidder may
include in the technical proposal the possibility to subcontract part of the
works or services covered by the tendered contract.
SELECTION CRITERIA
The contracting authority is entitled to apply qualification and selection
criteria only with regard to:
i. status of the candidate;
ii. capacity to carry out its business activity;
iii. economic and financial status;
iv. technical and/or professional capacity;
v. quality assurance standards;
vi. standards regarding the environment protection, in certain cases
mentioned by GEO no. 34.
SELECTION CRITERIA
All amendments to the selection and evaluation
criteria are to be published in an erratum and the
period during which participants may submit
their offers should be extended accordingly. It is
unlawful to amend any information from the
invitation to participate or the announcement by
giving clarifications without the issuance of an
erratum. This may lead to the award process
being annulled.
RULES FOR AVOIDING CONFLICT OF INTEREST
It is expressly stated that the contracting authority discloses in the
tender documentation the persons with decision-making powers who
are deemed to be managers of the contracting authority, members of
the boards of the authority who are involved in the public procurement
process as well as any other person within the authority who has power
to influence the content or the public procurement process.
REMEDIES AND ENFORCEMENT
Any bidder, whose rights or interests were infringed by an action of a
contracting authority, is entitled to challenge the respective action by
filing a complaint with the CNSC. CNSC is a special body created to
review and take decisions with regard to any challenge brought against
any deed issued with regard to an award procedure. According to the
GEO no. 77, the Decisions of CNSC must be published in SEAP and on
the website of CNSC. The decisions of CNSC may be challenged before
the Administrative Litigation Section of the Court of Appeals competent
in the jurisdiction where the contracting authority is located. The court
decision is final and irrevocable.
REMEDIES AND ENFORCEMENT
In case that CNSC dismisses the complaint as unfounded, the
contracting authority shall retain a percentage of the participation bond
calculated function of the estimated value of the tendered contract.
The claims for damages caused during the awarding procedure may be
filed only with the administrative contentious sections of the tribunal
from the jurisdiction in which the contracting authority has its registered
office, according to the rules provided by GEO 34/2006, or by filing a
separate legal action, according to the civil procedure.
CONCLUSIONS
• New Government prioritizes public procurement as efficient means to
boost business environment. Good allocation of funds to highways,
national road and rural infrastructure, energy projects.
• The public procurement legislation in Romania has rigorously
transposed EU legislation.
• Public contracts have always lured private companies - the
opportunities and the benefits are significant now in light of a cohesive
legislative regime.
THANK YOU FOR YOUR ATTENTION!
Ligia Cecilia Popescu Wolf Theiss Bucharest, Romania Tel : F +40 21 308 81 00
E-mail: ligia.popescu@wolftheiss.com
www.wolftheiss.com
Fabiola Meister Wolf Theiss Bucharest, Romania Tel : F +40 21 308 81 00
E-mail: fabiola.meister@wolftheiss.com
www.wolftheiss.com