Public Procurement Newsletter No. 2/2013
New Amendments To The Public Procurement Legislation
Government Emergency Ordinance no. 34/2006 on the award of public procurement contracts, public works concession contracts and services concession contracts (“GEO 34/2006”) was amended and supplemented by Government Emergency Ordinance no. 31/16.04.2013, published in the Official Gazette no. 237/2013 (“GEO 31/2013”) and Government Emergency Ordinance no. 35/23.04.2013 published in the Official Gazette no. 251/30.04.2013 (“GEO 35/2013”).
Also, Government Decision no. 183/16.04.2013, published in the Official Gazette no. 227/19.04.2013 (“GD 183/2013”), amended and supplemented Government Decision no. 925/2006 containing the methodological rules for the application of Government Emergency Ordinance no. 34/2006 on the award of public procurement contracts, public works concession contracts and services concession contracts (“GD 925/2006”).
We will hereinafter present the most significant changes brought by the entering into force of the above mentioned normative acts.
I. Air carriers will no longer be considered contracting authoritites
According to the amendment of art. 8 of GEO 34/2006 brought by GEO 31/2013, contracting authorities will be any autonomous administration or national company/corporation having its capital fully or mostly owned by a contracting authority, as defined by art. 8 letter a) of GEO 34/2006, or by any other public law body, except for air carriers.
The amendments brought by GEO 35/2013 are aimed at eliminating unjustified delays in adopting the final decision by the evaluation committee that are due to the actions or inactions of the contracting authorities’ officials.
Thus, the new provisions regulate the following deadlines for the evaluation of the candidatures/bids, but only in the case of award procedures for services concession contracts, works concession contracts, or for public-private partnerships:
- open procedure – the evaluation committee is required to finalize the bids evaluation process within 35 days from the date of the opening of the bids;
- restricted procedure – the evaluation committee is required to (i) finalize the candidates selection process within 15 days from the deadline for submitting the candidatures and (ii) to finalize the bids evaluation process within 35 days from the opening of the bids;
- competitive dialogue – the evaluation committee is required to (i) finalize the pre-selection process within 15 days from the deadline for submitting the candidatures, (ii) finalize the dialogue procedure within 120 days from the transmission of the dialogue participation invitation and (iii) complete the evaluation process of the final bids within 35 days from the opening of the bids;
- negotiation with publication of a participation notice – the evaluation committee is required to (i) finalize the candidates pre-selection process within 15 days from the deadline for the submission of candidatures and (ii) finalize the second phase of the negotiation procedures within 50 days from the date the participation invitation was transmitted
Also, for insuring the observance of the new above mentioned deadlines, GEO 35/2013 regulates new penalties, both of a contraventional and administrative-disciplinary nature.
Therefore, the exceeding of the new deadlines is sanctioned by fine in the range of 20.000 lei to 40.000 lei and is also considered a disciplinary gross misconduct.
Concurrently, in accordance with the modification of the introductory part of art. 293 of GEO 34/2006, the actions provided by art. 293 will be considered contraventions (minor offence) only if they have not been committed in such a manner as to be considered a criminal offence, according to the Romanian criminal law. This latter amendment will enter into force after a 30 days period from the date of publication in the Romanian Official Gazette of GEO 35/2013, respectively on the 30th of May, 2013.
a. The mandatory request of the sworn declaration regarding the non-inclusion in the provisions of art. 691 of GEO 34/2006
According to para. (31) of art. 2 of GD 925/2006, newly introduced by GD 183/2013, the contracting authority requires that the bidder/ candidate/ associated bidder/ subcontractor/ supporting third party submits a sworn declaration that confirms his non-inclusion in the provisions of art. 691 of GEO 34/2006 regarding conflict of interest situations.
The measure is necessary for the observance of the contracting authority’s obligation to take all the necessary measures for the avoidance of the situations that could determine any conflict of interest and/or disloyal competition.
b. Clarification of the meaning of “identification data of the persons holding decision-making positions within the contracting authority” which must be found in the declaration regulated by art. 331 para. (4) of GEO 34/2006 and the access to these data
According to art. 331 para. (4) of GEO 34/2006, the contracting authority must load in SEAP, together with the award documentation, a sworn declaration from its legal representative that contains the identification data of the persons holding decision-making positions within the contracting authority, document that is not public.
According to the amendments brought to GD 925/2006, the identification data of the persons holding decision-making positions within the contracting authority, which must be found in the sworn declaration of the legal representative refer to:
- name and surname;
- date and place of birth;
- the current domicile;
- the personal identification number (in Romanian, codul numeric personal – CNP);
- the position occupied within the contracting authority by reference to his/her implication in the public procurement process
The entities having attributions in the verification of the occurrence of any conflict of interest situation are granted access to the above mentioned statement, as provided by law.
Also, in performing its verification function, the Ministry of Public Finance (“MPF”), through the Unit for the Coordination and Verification of Public Procurement/the departments for the verification of public procurement procedures (“UCVAP/CVAP”) has access to the statement in order to prevent the situation provided by art. 691 of GEO 34/2006.
The confidentiality and impartiality sworn declaration signed by the evaluation committee and by the experts engaged shall contain the identification data mentioned above in sub-paragraph b, and it shall be made available to the entities having attributions in the verification process for the avoidance of any conflict of interest situation.
For the fulfillment of its verification attribution, MPF, through UCVAP/CVAP, has access to the sworn declaration, in order to prevent the situation provided by art. 69 of GEO 34/2006.
In case one of the designated members of the evaluation committee or one of the experts engaged ascertains, at any time during the exercise of his attributions, that he finds himself in an incompatibility or conflict of interest situation, he must request his immediate replacement from the committee with another person.
Incompatibility/conflict of interest situations may also be brought to the attention of the contracting authorities by third parties.
In the above-mentioned situations, the contracting authority verifies the information that it has been provided with and, if confirmed, orders the replacement of the respective evaluation committee member or expert.
Concurrently, the contracting authority orders the replacement of the evaluation committee member or expert if the situations presented above are ascertained as a result of the observations addressed by MPF observers through UCVAP/ CVAP.
A bid will be considered unacceptable if, by reference to the deadline for submitting the bids, the bidder/ candidate/ associate bidder/ subcontractor/ supporting third party has as members in the board of directors/ control or supervision authority and/or any of its shareholders or associates persons that are husband/wife to or are relatives or in-laws to the fourth degree inclusively with or have commercial relations (as defined by art. 69 letter a) of GEO 34/2006) with persons holding decision making powers within the contracting authority.
A new paragraph was introduced to article 76 of GD 925/2006, respectively para. (6) that provides that in case the contracting authority approves the report of the awarding procedure without taking into account the comments set forth by MPF observers through UCVAP/CVAP regarding the situations provided by art. 69 and 691 of GEO 34/2006, the National Integrity Agency (“N.I.A”) will be notified in a 5 days period from the date the report of the awarding procedure is signed, in order to identify the infringement of the legal regime of conflict of interest in relation to the provisions of Law no. 176/2010 regarding the integrity in the exercise of public positions and dignities.
Moreover, together with the notification, the complete bid documentation will also be sent to N.I.A.
f. The evaluation committee will request clarifications regarding the non-observance of the provisions of art. 691 of GEO 34/2006
Before deciding upon the rejection of the candidature/bid, according to the newly introduced art. 36 para. (1) letter g, based on a conflict of interest situation provided by art. 691 of GEO 34/2006, the evaluation committee will request clarifications and, as the case, supplementation of the documents that it was initially provided with by the candidate/ bidder/ subcontractor/ supporting third party regarding their non-inclusion in the provisions of art. 691 of GEO 34/2006.