Public Procurement Newsletter No. 1/2011
Internal law legislative news
Amendment of the Government Emergency Ordinance 34/2006 on the award of public procurement contracts, public works concession contracts and services concession contracts (hereinafter referred to as GEO 34/2006)
The Law approving the Government Emergency Ordinance 76/2010 for the amendment and supplementation of GEO 34/2006 (hereinafter referred to as GEO 76/2010) was published in the Official Gazette, part I, no. 898 dated December 31, 2010.
We will present you hereinafter the most important amendments, which are relevant in the public procurement field:
(i) the express qualification of the public procurement contract as commercial contract;
(ii) the extension of the scope of GEO 34/2006, by changing the limits provided by GEO 34/2006 for the application of the provisions of the public procurement legislation or the fulfillment of certain requirements provided by GEO 34/2006 (e.g., requirements pertaining to the publication of announcements by NARMPP, etc.), so as to include the contracts having an estimated value higher than but also equal to the thresholds expressly specified in the GEO 34/2006;
(iii) the exclusion of the research and archeological discharge services for the archeological patrimony and archeological sites from the scope of GEO 34/2006 (according to the new amendments, the works will be performed by the Romanian National History Museum and by the other museum related institutions authorized by the law);
(iv) the amendment of the concept of the economic operator involved in the award proceeding which does not cover the candidate/offeror whose offer has been definitively rejected by the contracting authority, and the rejection was validated by NSSC;
(v) the exclusion of the jurisdiction of the court of law during the award procedure and the limitation of the remedies at law available for any person who considers that his/her right or legitimate interest has been prejudiced, against the complaint filed by administrative means within the jurisdiction (namely before NSSC), for the purpose of annulling the document, requesting the authority to issue a document or recognizing the claimed right or the legitimate interest; thus, the exclusive jurisdiction to resolve the complaints against the proceeding for the award of public procurement contracts will be NSSC, and the court of law will have jurisdiction to resolve the complaint against the decision issued by NSSC;
(vi) the provisions, according to which the provisions of GEO 34/2006 are supplemented by the ones of Law 554/2004 on the administrative procedure, have been removed.
Note: Compliance of the provision setting forth the mandatory competence of NSSC (by excluding the competence of the courts of law), with the provisions of the Constitution that set forth the free access to justice and the fact that administrative jurisdictions are facultative rather than mandatory (art. 21 of the Constitution) is highly questionable. From this perspective, it is expected to have this provision subject to a constitutionality test in the context of non-constitutionality exceptions
The certificate of participation in tenders with an independent offer
According to NARMPP Order 314 as of October 12, 2010 regarding the application of the certificate of participation in tenders with an independent offer (hereinafter referred to as the “NARMPP Order”), published in the Official Gazette no. 701 dated October 20, 2010, each offeror/candidate to any form of tender, in the sense of the provisions of GEO 34/2006, will present a sworn declaration to certify that the participation in the respective proceeding complies with the competition rules. Pursuant to Art. 12 paragraph (3) of Law 24/2000 on the norms of legislation technique to elaborate normative acts, the orders issued by the heads of the specialized central public administration bodies come into effect as of their publication in the Official Gazette of Romania, Part I, unless a subsequent date is specified in such orders.
News published on the official website of the National Authority for Regulating and Monitoring Public Procurement (NARMPP)
On the website of NARMPP, the notice to the contracting authorities was published, and according to this notice, pursuant to the provisions of Art. 971 of GD 925/2006 approving the norms for the application of the provisions regarding the award of public procurement contracts of GEO 34/2006, the contracting authorities must issue ascertaining documents containing information on the performance of the contracting party’s contractual obligations, and on the potential harms, if the case.The ascertaining documents are prepared in three copies, and the contracting authority has the obligation to deliver a copy to the economic operator, submit a copy to the public procurement file and send a copy to NARMPP, within 10 days at the most from the expiry of the terms provided by the law.
Support of cross-border tenders by the European Commission through the e-CERTIS system
The e-CERTIS system was launched by the European Commission on October 18, 2010, being a guide, which indicates the documents and certificates needed by the bidding companies for obtaining certain public procurement contracts in the Member States of the European Union, and such guide can be used in 22 official languages.
The guide helps:
• the companies to identify the documents and certificates that they must submit when bidding for obtaining a contract in an European country;
• the contracting authorities from the European countries to determine which documents they should request from the companies participating in the tender or which documents they may accept from these companies.
The system can be used by the concerned entities, using several search criteria, including searches based on key-words in the original language of the document searched for. e-CERTIS performs the correspondence between equivalent documents obtained through the comparison of various national data sets. The common structure permits a thorough analysis of the various types of documents.
e-CERTIS can be accessed on the website of the General Directorate Internal Market and Services within the European Commission.