Public Procurement Newsletter No. 2/2011
I. Internal Law Legislative News
1. FIDIC special conditions for investments in road infrastructure of national interest
Order no. 146/2011 of the minister of transports and infrastructure on the approval of the special contractual conditions of contracts for equipment and constructions, including design, and of contracts for building construction and engineering works designed by the beneficiary of the International Federation of Consulting Engineers in the Construction Industry (FIDIC) in view of investments in the field of road transportation infrastructure financed from public funds was published in the Official Gazette no. 188 dated March 17, 2011.
The special FIDIC contractual conditions envisaging investments in the field of road transportation of national interest financed from public funds are approved in the form set forth in Annex 1 and 2, which are part of Order no. 164/2011.
2. Amendments regarding the organization and operation of the National Authority for Regulating and Monitoring of Public Procurement
Government Decision no. 186/2011 on the amendment and supplementation of Decision no. 525/2007 on the organization and operation of the National Authority for Regulating and Monitoring of Public Procurement (ANRMAP) was published in the Official Gazette no. 162 dated March 7, 2011.
As per the amendments made, the vice president of ANRMAP will fulfill only the duties assigned by the president through an order, as opposed to the previous provisions according to which he/she coordinated the supervision and monitoring activity within the institution. In addition, as per the new amendments, the vice president is no longer the rightful substitute of the president in the latter’s absence and the duties of the president may now be delegated to the vice president only by means of an order issued by the president.
II. News Published on the Official Web Site of the National Authority for Regulating and Monitoring of Public Procurement
1. New procedures regarding the award of certain works contracts, supply contracts and service contracts by the contracting authorities or entities in the fields of defense and security
ANRMAP published on its official web site for public reading the draft of the Emergency Ordinance for transposing Directive 2009/81/EC on the coordination of procedures for the award of works contracts, supply contracts and service contracts by contracting authorities or entities in the fields of defense and security and amending Directives 2004/17/EC and 2004/18/EC.
The draft envisages that this Emergency ordinance should enter into force on January 1, 2012, and apply to public procurement contracts, including utilities contracts and frame-agreements awarded in the fields of defense and security having as subject matter:
- supply of military products, including any type of spare parts, parts and/or combinations thereof;
- supply of sensitive products, including any type of spare parts, parts and/or combinations thereof;
- works, products and services related directly to the products listed at items (a) and (b) above for any stage or for all stages during the life cycle thereof;
- works and services specially intended for certain military purposes or sensitive works and services
2. Inter-institutional protocol concluded between the National Authority for Regulating and Monitoring of Public Procurement and the National Agency for Integrity
It was published on the official web site of ANRMAP the official statement on the execution on March 31, 2011 of a cooperation protocol based on which the two institutions will provide each other data and information obtained during the performance of specific activities related to possible conflicts of interests, as well as possible incompatibility situations.
In view of fulfilling the commitments undertaken within such protocol, the signatories undertook to create a mutual information mechanism, in real time, regarding the possible conflicts of interests in order to prevent ex ante the occurrence of negative consequences, to create certain practical guide books and/or other advertising materials in order to prevent possible situations that may generate conflicts of interests and/or incompatibility, to support legislative initiatives presented by each party in view of rendering effective the activities for preventing and combating the conflicts of interests and incompatibilities, to organize seminars and meetings having as discussion topics methods and means for preventing and combating the conflicts of interests and incompatibility situations.
III. Jurispundence
1. Limitative technical specifications.
The contracting authority provided in the tender book the condition according to which the bidders must present “the list of services provided relevant to the object of the contract and to the awareness of the facts on the territory of county [X] in general and of the facts in the area in particular” and the list of the services provided “must include at least one completed development strategy on the territory of county [X]”.
Following the analysis of the provisions in the aforementioned award documentation, CNSC stated that the contracting authority prohibited the access of economic operators which lack similar experience in terms of providing such services in county [X] to this procedure. The principle of non-discrimination provided by Art. 2 para. 2 letter a) of GEO no. 34/2006 stands for one of the purposes of this ordinance as defined in para. 1 letter b) of the same Article, defined univocally in the doctrine and specialized literature as representing the obligation of the contracting authority to ensure the conditions for actual competition so that any economic operator regardless the nationality should have the right to attend the award procedure and implicitly to become a contractor as per the legal conditions.
Considering also the stage of the procedure indicated by the contracting authority, namely the fact that the bids had already been opened, CNSC decided that in light of the serious breaches of the principles provided by Art. 2 para. 2 of GEO no. 34/2006, no remedy measures can be taken and therefore, based on the provisions of Art. 278 para. 4 and 6 of GEO no. 34/2006, the Council admitted the objection and ordered the annulment of the award procedure.
CNSC decision no. 31/C5/7677 dated 5 January 2011.
2. Creating the bid bond in another form than the one set forth by the authority. Unlawful acceptance of the bid
By means of the challenged decision, the Council admitted the objection, annulled the report of the award procedure and ordered the contracting authority to reassess the bids and issue a new report of the procedure in full compliance with the tender documentation and the law in force regarding public procurement.
The Claimant contracting authority does not raise in support of the complaint criticisms with regard to the decision challenged, but it only states that the fact that the winning bidder presented a payment order as evidence for the payment of the bid bond has no relevance for determining the winning bid since the criterion applied for awarding the public procurement contract was “the lowest price” and not the way in which the bid bond was created.
In fact, the fulfillment of the express requirement in the tender documentation, namely to present a letter of bank guarantee in favor of the authority standing as bid bond, was mandatory for all bidders. The fact that the authority accepted one of the bidders to submit the bid bond by means of payment order and not by means of bank comfort letter represents a breach of the equal treatment and non-discrimination principle.
As per Art. 33 para. 3 and Art. 36 of GO no. 925/2006, the bid is deemed unacceptable unless it is accompanied by the bid bond as required in the tender documentation. Since the procurement data sheet specified expressly and clearly the requirement to present a letter of bank guarantee, the assessment committee must reject said bid as unacceptable.
Civil decision no. 1258 dated May 7, 2009 rendered by Bucharest Court of Appeal, Section VIII – Administrative and Fiscal Contentious
3. The period for filing objection against the tender documentation starts as of the publishing date thereof in SEAP and not as of the date when the answer to the request for the clarification of the documentation is received.
In this case, the Council held correctly that the subject matter of the objection is in fact the tender documentation as this documentation is the one which includes the technical specifications deemed unlawful. That fact that the claimant filed a request for clarification whereby it requests the amendment of the documentation is not relevant as long as those clarifications made no amendment to the documentation.
Given the circumstances, the period must be computed as of the publishing date of the tender documentation in SEAP and not as of the publishing date of the clarification which does not generate legal effects as it does not have a content which may amend in any way the documents issued before.
Civil decision no. 1903 dated October 5, 2009 rendered by Bucharest Court of Appeal, Section VIII – Administrative and Fiscal Contentious.
