Public Procurement Newsletter No. 1/2013
New Amendments to the Public Procurement Legislation
Government Emergency Ordinance 77/2012 amending and supplementing Government Emergency Ordinance on the award of public procurement contracts, public works concession contracts and services concession contracts (“GEO 77/2012” and “GEO 34/2006”, respectively) was published in the Official Gazette 827/2012.
GEO 77/2012 became effective on January 1, 2013, and brought a series of amendments to the previous legal regime. We will hereinafter present the most significant changes.
a). Correlation of thresholds provided by GEO 34/2006 with the ones provided by the European regulations/directives
Commission Regulation (EU) no. 1251/2011 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 award procedures of public procurement contracts, became effective on January 1, 2012.
The thresholds provided by GEO 34/2006 remained uncorrelated with the new thresholds provided by the Community legislation, during 2012. Therefore, GEO 77/2012 remedied this discrepancy:
- the amount of EUR 125,000 (in Art. 55, Art. 57, Art. 124, Art. 158, Art. 28712 of GEO 34/2006) was replaced by the amount of EUR 130,000;
- the amount of EUR 193,000 (in Art. 9 of GEO 34/2006) was replaced by the amount of EUR 200,000;
- the amount of EUR 387,000 (in Art. 55, Art. 57, Art. 28712 of GEO 34/2006) was replaced by the amount of EUR 400,000;
- the amount of EUR 4,845,000 (in Art. 9, Art. 51, Art. 55, Art. 57, Art. 124, Art. 223, Art. 227, Art. 28712 of GEO 34/2006) was replaced by the amount of EUR 5,000,000
b). Amendment of legal nature of the public procurement contract
Following the amendments brought by GEO77/2012, the contract concluded by the contracting authority with the winning bidder, as a result of the public procurement procedure, is no longer deemed as a commercial contract, but as an administrative act.
As a consequence, the court’s jurisdiction was also changed, by transferring the trials and claims concerning the award of indemnification, the remediation of harm caused within the award procedure, as well as the ones concerning the performance, nullity, annulment, termination or unilateral termination of the public procurement contracts, to the jurisdiction of the administrative and fiscal dispute resolution department of the tribunal, within the jurisdiction of which the headquarters of the contracting authority is located.
c). New obligation to report to SEAP with respect to direct procurement
Although the threshold for direct procurement was not changed, and remained EUR 15,000, as established by Art. 19, GEO 77/2012 set forth a new obligation for the direct procurement.
Thus, Art. 191 provides that the contracting authority submits to SEAP a notice with respect to the direct procurement, the value of which exceeds the Lei equivalent of the amount of EUR 5,000, VAT excluded, within maximum 10 days from the receipt of the supporting document underlying the procurement carried out. The notice must comprise information with respect to the identification details of the economic operator, the object of the procurement, the CPV code, the value of the procurement, the procured quantity and the date when the procurement was performed/awarded.
d). Amendment of the rules for estimating the value of the public procurement contract
For the works contracts, in the conditions provided by Art. 29 of GEO 34/2006, the estimated value will also comprise the amount related to the percentage of various and unforeseen expenses defined by the designer in the general estimate, by relating this percentage to the estimated value of the contract.
e). Improvement of transparency and publicity of procedures
Pursuant to the newly-inserted paragraphs (3) and (4) of Art. 33 of GEO 34/2006, the qualification and/or selection requirements/criteria specified in the tender book or the descriptive documentation and not included in the data sheet/participation invitation/ contract notice, as well as the evaluation criteria included in the award documentation, but not included in the participation invitation/ contract notice, are considered unwritten clauses.
Therefore, it will not be necessary anymore to challenge the award documentation for the removal of an evaluation criteria or a hidden qualification/selection requirement, as these are considered unwritten if they are not included in the data sheet, participation invitation or contract notice, as the case may be.
Moreover, GEO 77/2012 sets forth the obligation to publish an erratum, if the qualification and selection criteria specified in the participation invitation or contract notice are amended or supplemented, as well as if the deadline for the submission of bids is delayed. The amendment/supplementation of the information included in the participation invitation/contract notice by way of clarifications and without publishing an erratum was expressly prohibited.
In addition, the inserted Art. 692 set forth the contracting authority’s obligation to publish in SEAP the name and identification details of the bidder/candidate/associate bidder/subcontractor/ supporting third party, within maximum 5 days from the expiry of the deadline for the submission of applications/bids.
f). Right of the contracting authority to extend the term for the submission of bids
Art. 72 of GEO 34/2006, which sets forth the situations in which the contracting authority may extend the term for the submission of bids was amended and extended by adding the situation in which the time period set forth for the submission of bids is not sufficient for the preparation of bids and/or clarification documents requested by the award documentation.
g). Right of applicants to request for clarifications
Art. 85 and Art. 116 were supplemented by inserting the right for economic operators to request clarifications with respect to the award documentation also in the stage of selection of candidates within the restricted tender and the negotiation with the prior publication of a contract notice. Before, the ordinance set forth this right only for the candidates which were already selected.
h). Decrease of the threshold below which a bid will be considered as having an unusually low price
By the amendment of para. (11) of art. 202, the threshold below which a bid is considered as having an unusually low price was decreased from 85% to 70% of the estimated value of the respective contract, if in the award procedure there are less than 5 bids, which are not considered unacceptable and/or noncompliant.
Thus, the intention is to diminish the incidence of this article and, implicitly of (i) the contracting authority’s obligation to request for details and clarifications with respect to this issue and of (ii) the rejection of the bids for having an unusually low price.
i). Optimizing the procedures for the award of public procurement contracts organized per lots
The standstill period until the conclusion of the public procurement contracts, provided in Art. 205 of GEO 34/2006, will be calculated for each lot and determined depending on the estimated value of each lot.
The deadlines for challenging the award procedures organized per lots will be determined as well depending on the estimated value of each lot, for the purpose of diminishing the incidence of the 10 day term provided by Art. 2562 para. (1) letter a.
Moreover, by adding para. (3) to Art. 213 of GEO 34/2006, the possibility (not the obligation) for the contracting authority to prepare the procedure report for each lot was provided. Therefore, in case of complaint against and annulment of the procedure report for a lot, such report will have to be remade by the contracting authority only for the respective lot.
j). Discontinuance of the NCSC panel for solving complaints
The rule of the continuance of the NSCS panel for solving complaints filed within the same procedure was removed and even overturned, and the rule of the panel discontinuance was established.
Thus, Art. 264 para. (3) letter c1 provides that the NSCS members are not entitled to participate in the process of solving a complaint, subject to the sanction of nullity of the decision issued, if they solved another complaint within the same award procedure.
k). Decrease of the terms for the examination of the award documentations by ANRMAP
The term for the examination of the award documentations by ANRMAP was decreased from 14 days to 10 days.
Moreover, decreased terms were established in certain special situations, such as: (i) a 3 day term for the evaluation by ANRMAP of the award documentations which it re-examines after the contracting authority rectifies the faults identified by ANRMAP upon its first examination and (ii) a 2 day term for the examination of the errata to the participation notices/calls for tender.
l). Extension of the contracting authority’s right to retain the participation bond in case a complaint is filed
Following the amendment of GEO 34/2006, the contracting authority will also retain from the participation bond the amounts provided by Art. 2781 para. (1) in case the complaining party withdraws its complaint, except for the case where the withdrawal is caused by the adoption by the contracting authority of the necessary remediation measures.
Moreover, the contracting authority will retain such amounts if the court in charge with resolving the claim against the NCSC decision, whereby the complaint was admitted, admits the claim, and dismisses the complaint on the merits.