Public Procurement Newsletter No. 4/2011

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I. Internal Law Legislative News

1. Rules on determining the qualification and selection criteria

Order no. 509 issued by the National Authority for Regulating and Monitoring Public Procurement (“ANRMAP“) with regard to the determination of the qualification and selection criteria (“Order no. 509/2011“) was published in the Official Gazette of Romania, Part 1, no. 687 dated September 28, 2011.

Order no. 509/2011 was adopted for the purpose of bringing certain clarifications to the legal provisions applicable in the public procurement field. Among the main aspects regulated by Order no. 509/2011 are:

(i) The supporting third party will only provide to the bidder full support in meeting the requirement regarding turnover or similar experience (and not partial support, depending on the component of interest within a specific project, e.g., a certain activity or type of product/services). Consequently, supporting third parties will assume full subsidiary liability in the event that the main contractor fails to perform the contract adequately.

(ii) Annex 2 to Order 509/2011 sets outs the resources for which support may or may not be provided in the award procedure of the public procurement contract (for instance, a supporting third party may not provide support for: certifying endorsements, authorizations, certificates requested from bidders to prove their capacity to exert their professional activities; proving the bidder’s general liquidity or solvency, etc.);

(iii) A sub‐contractor or associate may provide for the bidder evidence regarding authorizations (for instance, the Romanian Railway Authority (AFER), National Regulatory Authority in the Energy Field (ANRE) etc.) requested from bidders to meet the qualification criterion “capacity to exert their professional activity“, provided that the sub‐contractor or associate, as the case may be, fully performs that part of the agreement for which the respective authorization is requested;

(iv) The contracting authorities must establish the qualification and selection criteria based on how relevant they are for the object of the public procurement procedure;

(v) Economic operators may submit documents in any of the following forms: original, legalized or legible copy mentioning ‘true copy’. This rule will not apply to documents drafted/issued by candidates or bidders, third parties’ firm commitment and deeds issued by insurance companies, banking or other accredited financial institutions, in which case such documents will be submitted in original;

(vi) Qualification requirements with regard to the payment of fees, taxes and social contributions will be deemed met even in the case of deferred payment or compensation approved by the competent authorities. Such payments may be proven both by way of the bidder’s affidavit and by fiscal certificates;

(vii) Qualification and selection requirements such as ISO OHSAS 18001:1999 – management system for health and safety at work, or SA 8000 certificate will no longer be requested by the contracting authorities. Quality assurance standards such as ISO 9001 and ISO 14001 or an equivalent may be requested by the competent authorities for meeting the qualification and selection criteria.

(viii) Minimum qualification and selection criteria with regard to similar supply/services/works contracts signed/concluded and/or initiated in the last three years or five years respectively, are considered restrictive as they do not take into account situations where economic operators have signed/concluded and/or initiated such contracts with more than three or five years ago but the required similar experience was actually acquired during the period requested;

(ix) Qualification and selection requirements regarding “completed services” will be deemed to refer either to partially received services or to services received at the end of the performance;

(x) Qualification and selection criteria regarding “works performed and completed” or “finalized works agreements” will be deemed to refer either to partially performed works, in which case a partial receipt protocol is provided, to performed works accompanied by a receipt protocol or to fully performed works, in which case a final receipt protocol is provided;

(xi) It is prohibited to impose both value and quantity conditions in order to assess whether the requirement regarding similar experience was met;

(xii) The experts’ experience, number of projects completed as well as relevant samples will always be requested by the contracting authorities as minimum qualification and selection criteria and not as evaluation criteria. Only the quality/technical parameters of the bid may serve as evaluation criteria.

2. Organization and functioning of ANRMAP

Government Decision no. 801, amending and supplementing Government Decision no. 525/2007 on the organization and functioning of the National Authority for Regulating and Monitoring Public Procurement (‘Government Decision no. 801/2011’) was published in the Official Gazette of Romania, part I, no. 563 dated August 8, 2011.

Pursuant to Government Decision no. 801/2011, in addition to its existent duties and responsibilities, ANRMAP will assess, in terms of legal regulations applicable to public procurements made via the Electronic Public Procurement System (“SEAP”), for invitations to participate, invitation announcements as well as the award documentation for public procurement contracts. The technical aspects of tender books will not be assessed by ANRMAP.

The assessment will take place before publishing these documents in SEAP, within no more than 14 days as of the date the documents were uploaded into SEAP by the contracting authorities. Within the aforementioned term, ANRMAP will either issue its decision to initiate the award procedure or will inform the contracting authorities about the
detected irregularities.

Moreover, Government Decision no. 801/2011 regulates the organizational restructuring of ANRMAP.

3. Organization and functioning of the National Council for Solving Complaints

Government Decision no. 1037/2011 on the approval of the Regulation for the organization and functioning of the National Council for Solving Complaints was published in the Official Gazette, Part I, no. 775 dated November 2, 2011.

The new regulation abrogates Government Decision no. 782/2006 approving the Regulation for the organization and functioning of the National Council for Solving Complaints.

4. Regulation of public utility contracts

Order no. 533 issued by ANRMAP for the interpretation of Art. 243 of Government Emergency Ordinance no. 34/2006 (“Order no. 553/2011”) was published in the Official Gazette, Part I, no. 753 dated October 19, 2011.

Pursuant to Order no. 553/2011, public utility contracts are defined as “those contracts awarded by a contracting authority, as defined under Art. 8 letter d) and e) of Government Emergency Ordinance no. 34/2006, for the purpose of carrying out a relevant activity in the field of public utilities, namely water, energy, transport and post.”

The following will be regarded as public utility contracts:

(i) contracts having as object the purchase of products, services or works which are directly or indirectly destined to carry out or support a relevant activity in the aforementioned public utility fields, as well as

(ii) contracts having as object the purchase of products, services or works for the administrative and organizational functioning of the contracting authority.

Consequently, an exception from the application of the provision of Government Emergency Ordinance no. 34/2006 will be made, pursuant to Art. 243, if the contracting authority (which does not act as contracting authority pursuant to Art. 8 points a)‐c) of Government Emergency Ordinance no. 34/2006) purchases products, services or works used in other commercial or industrial activities which are not directly or indirectly related to the relevant activity, being exclusively intended for those commercial or industrial activities.

Annex no. 2 to Order no. 553/2011 contains a series of relevant examples for the application of the aforementioned rule (for instance, a contracting authority which conducts a relevant activity in the “energy” field of public utilities, must enforce Government Emergency Ordinance no. 34/2006 in relation to the purchase of work or protection equipment; the same rule applies with regard to the purchase of archiving, security, legal assistance services as these services would contribute indirectly to the performance of the relevant activity, etc.).

5. The Unit for the Coordination and Verification of Public Procurement (UCVAP) – role of verifying the procedural aspects of the award process

Under Government Decision no. 921/2011, the new application norms of Government Emergency Ordinance no. 30/2006 on the verification of the procedural aspects of the award process were adopted, repealing Government Decision no. 942/2006.

The new norms bring a series of changes to the verification procedure, of which we specify:

  • Detailed presentation of the stages of the award procedure subjected to procedural verification;
  • Detailing the selection criteria of the award procedure which will be subjected to procedural verification, eliminating the notions of risk analysis and risk category;
  • Listing the documents which may be drafted by the Evaluation Commission as part of the award procedure;
  • Conclusion of new collaboration agreements between UCVAP and the authorities and institutions involved in the public procurement system

6. Questions and answers by ANRMAP

In the newsletter no. 15 dated November 2011, available on the site www.anrmap.ro, the regulatory authority published answers to some of the questions asked by the economic operators. We mention the following main aspects:

(i) Restricting the sub‐contracting activity. The contracting authority is entitled to restrict, through the award documentation, the possibility of sub‐contracting a public procurement contract, to a certain percentage of the contract’s value, to the extent that such restriction was generated by the fact that the contracting authority cannot verify qualification criteria for subcontractors.

(ii) Support. An economic operator may provide support to several bidders participating in the same procedure, for the purpose of meeting the qualification criteria.

(iii) An economic operator may not participate in the award procedure of a public procurement contract both as bidder and as supporting third party for another economic operator who submitted a bid in the same procedure.

(iv) In the awarding of a public works contract, the contracting authority may not request the submission of technical certificates issued by the Romanian Professional Association of Roads and Bridges, as such a requirement would be contrary to the principles set out in Art. 2 of Government Emergency Ordinance no. 34/2006;

(v) It is prohibited to modify the object of the agreement by reducing the quantity of a product and supplementing the quantity of another product, in the same award procedure;

(vi) It is not possible to use an award procedure with a last phase consisting of an electronic tender for an agreement having as object audit services, as this would be in breach of Art. 163 of Government Emergency Ordinance no. 34/2006, which provides that services agreements that imply intellectual services, such as consultancy or design agreements, may not be awarded through procedures having as last phase an electronic tender.

(vii) The contracting authority cannot reduce the term of the contract as a result of reducing the allocated budget, given that the award of the contract for a period of time shorter than the one stipulated in the award documentation will also entail the change of the value of the contract and implicitly, the award of a contract with a lower value than the bid submitted, which is in breach of the provisions of Government Emergency Ordinance no. 34/2006 and of the principles based on which the public procurement procedure is applied.

Furthermore, ANRMAP’s newsletter contains useful indications concerning the submission of the award documentation during the preliminary process of verifying the award documents by ANRMAP, before they are published in SEAP.

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