The new legislative package on public procurement was published in the Romanian Official Gazette

24.05.2016

On May 19, 2016, a new legislative package on public procurement was promulgated by the Romanian President, whereas on May 23, 2016 the laws were published in the Romanian Official Gazette following to enter into force in 3 days from the publication.

The European Directives on public procurement, adopted by the European Parliament on January 15, 2014, are transposed into Romanian legislation by four different laws, as follows:

  1. Law No. 98/2016 on public procurement (“PP Law”)
  2. Law No. 99/2016 on sectorial/utilities procurement (“Sectorial Law”)
  3. Law No. 101/2016 on remedies and appeals concerning the awarding of public procurement contracts, sectorial contracts and concessions and for the organization and functioning of the National Council for Solving Complaints (“Remedies Law”)
  4. Law No. 100/2016 on concessions of services and works (“Concessions Law”).

The new laws are meant to ensure better quality and value for money when public authorities buy works, goods or services.

Without attempting to exhaustively present all the aspects considered by the new laws, please find below the most relevant aspects:

I.  Law No. 98/2016 on public procurement (“PP Law”)

The rules of the PP Law will replace the provisions of the Government Emergency Ordinance No. 34/2006 on the award of public procurement contracts, public work concession contracts and service concession contracts (“GEO 34/2006”) and any other divergent provisions stipulated by other laws.

The PP Law stipulates the following significant changes:

  • The possibility of the contracting authorities to organize public consultation with regard to the further public procurement procedures and to inform the economic operators about the procurement plans and requirements in connection therewith;
  • The contracting authorities shall base the award of public contracts on the most economically advantageous tender;
  • The contracting authorities can choose between four award criteria in the awarding procurement procedure: lowest price, lowest cost, best-value for money, or best value for costs, depending on the particularities of each contract;
  • Introducing a new awarding procedure "innovative partnership” which allows the contracting authority and the tenderer to come up with innovative solutions together;
  • Introducing the standard "European Single Procurement Document“ (Romanian: Documentul Unic de Achiziţii European - DUAE ) consisting of an updated self-declaration, therefore, only the winning tenderer will have to provide original documentation;
  • Amending the value thresholds of the contracts.

In case the estimated value of public procurement contracts is lower than the amounts specified by law, a simplified procurement procedure shall apply.

The procedure for implementing the simplified procurement procedure will be established through methodological norms.

II.  Law No. 99/2016 on sectorial/utilities procurement (“Sectorial Law”)

The rules of the Sectorial Law will replace Chapter VIII of GEO 34/2006.

The Sectorial Law is applicable and provides for special conditions for the awarding procedures in the following sectors: gas and heat energy, electrical energy, water, transport, ports and airports, postal services, oil and natural gas exploitation.

III.  Law No. 101/2016 on remedies and appeals concerning the awarding of public procurement contracts, of sectorial contracts and concessions and for the organization and functioning of the National Council for Solving Complaints (“Remedies Law”)

The Remedies Law contains the following significant changes:

  • Consortium members may now individually submit claims to the National Council for Solving Complaints (CNSC) or to the court of law;
  • Prior notice submitted to the contracting authority regarding the presumed unlawful acts is now a condition of admissibility for the claim to be submitted to CNSC;
  • Detailed provisions governing the right of interested parties to choose between submitting challenges regarding the awarding procedure to CNSC or judicial courts;
  • An accelerated procedure before the courts of law;
  • Suspension of the awarding procedure and/or contract if special conditions are fulfilled and a bond of 2% from the estimated contract value is paid, but not higher than the amount established by law.

IV.  Law No. 100/2016 on concessions of services and works (“Concessions Law”)

The concession law establishes specific rules for the field of works concession and service concession contracts.

The Concession Law regulates two awarding procedures: open tender within which it is possible to organize a negotiation phase and the competitive dialogue.

A concession contract necessarily implies the transfer to concessionaire – an economic operator – of a significant part of the operating risk for works/services subject to concession.

The rules of Concessions Law will replace the provisions of Law no. 178/2010 on public private partnership, the Government Decision no. 71/2007 for the approval of the methodological norms concerning the awarding of the contracts on concession of works and services and any other divergent provisions stipulated by other laws.

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The awarding procedures performed so far and the contracts fulfilled before the date of the entry into force of the new legislative package remain subject to the legislation in force at the date of their initiation.

The public procurement legislative package will be a challenge for both contracting authorities and economic operators due to the novelty of its provisions and because there are many aspects which require further clarifications through methodological norms.

According to the officials of the National Agency for Public Procurement (“ANAP”), the methodological norms are already undergoing the approval procedure and they will be approved shortly after the new laws enter into force.

In addition to the public procurement package, the secondary and the tertiary legislation (methodological norms, ANAP’s orders and instructions) are essential to ensure a clear overview of the public procurement legislative framework and to create a supportive environment for the awarding of public procurement and concession contracts.