Public Procurement Newsletter No. 2/2012
I. Legislative News in Domestic Law
1. Limitations imposed on contracting authorities with respect to the clarifications they may issue regarding the award documentation
Order 171 of the National Authority for Regulating and Monitoring Public Procurement (“ANRMAP”), regarding clarifications related to the content of the award documentation, was published in the Official Gazette of Romania, Part I, no. 328, dated May 15, 2012.
Pursuant to the aforementioned normative act, contracting authorities are not entitled to make any amendments with regard to the award documentation in their answers to the requests for clarifications.
If the contracting authority amends, in its clarifications, the content of the award documentation, it is possible to notify the National Council for Solving Complaints (“NCSC”) of such amendment within a term that is calculated as of the date the respective answer of the contracting authority was communicated to the relevant party.
This normative act is aimed at addressing certain issues regarding the impossibility of participants in public procurement procedures to challenge the provisions of the award documentation at the expiry of the five-day or ten-day term since their publication in SEAP.
2. Interpretation of the conflict of interests pursuant to Art. 69¹ of GEO 34/2006
Order 170 of ANRMAP regarding the interpretation of Art. 69¹ of GEO 34/2006 (“Order 170/2012”) was published in the Official Gazette of Romania, Part I, no. 328, dated May 15, 2012.
Order 170/2012 expressly states the circumstances that lead to a conflict of interest between the decision makers of the contracting authorities and the persons that have close ties to one of the bidders/candidates/subcontractors/third party supporters.
In this regard, the following obligations are established for the contracting authorities:
- To state in the award documentation the name of the decision makers from the contracting authority in charge of the respective procedure; and
- To request bidders/candidates/associated bidders/subcontractors/third party supporters to submit evidence that would refute any of the circumstances stipulated by Art 69¹ of GEO 34/2006
3. Establishing the National Advisory Committee for Public Procurement
Order 166 of ANRMAP on the establishment of the National Advisory Committee for Public Procurement (“CNCAP”) was published in the Official Gazette of Romania, Part I, no. 315, dated May 11, 2012.
Pursuant to the aforementioned Order, CNCAP was established as an entity without legal personality which is coordinated by ANRMAP. CNCAP has an advisory role and is intended to serve as a debate forum for draft normative acts issued in the field of public procurement.
The main topics at the first meeting of CNCAP, held on June 14, 2012, referred to the composition of the said body, ways of participating in its works and amendments made to the law on public procurement.
ANRMAP management called upon all relevant stakeholders to submit by June 22, 2012 proposals to amend the law on public procurement, so that ANRMAP may analyze, consolidate and transmit them to the Government of Romania in order to include them in the Plan of Legislative Measures that will be submitted to the European Commission and the International Monetary Fund.
4. Establishing the obligation to sign the public procurement agreement /framework agreement within no more than 7 calendar days as of the expiry of the legal terms.
Government Decision 219/2012 sets forth the obligation of contracting authorities to sign public procurement agreements/framework agreements within no more than 7 calendar days as of the expiry of the terms stipulated by Art. 205 of GEO 34/2006.
In addition to this, Order 136/2012 issued by ANRMAP regarding the notice with respect to the conclusion of the public procurement agreement/framework agreement (“Order 136/2012”) sets out the obligation of contracting authorities to submit to ANRMAP, within 48 hours as of the conclusion of the agreement/framework agreement, a notice with respect to the actual signing date of the agreement/ framework agreement.
Winning bidders will be able to notify ANRMAP in the event that contracting authorities refuse to conclude the agreement/framework agreement within the due term. In this case, ANRMAP may impose a contraventional fine on the contracting authority ranging between Lei 20,000 and 40,000, as per Art. 293 and 294 of GEO 34/2006.
Both the notice form on the conclusion of the agreement/framework agreement and the notice form on failure to conclude the agreement/framework agreement within due time are included in the annexes to Order 136/2012.
5. The duty of the Unit for Coordination and Verification of Public Procurements (UCVAP) to verify the awards by negotiation without publication of the agreements funded by way of structural funds
Pursuant to Law 31/2012 on the endorsement of GEO 52/2011 regarding the amendment of GEO 30/2006 regarding the role of verifying procedural aspects of the award of public procurement agreements, of public works concession agreements and service concession agreements, UCVAP will verify the award of agreements funded by way of structural funds for all the awards by negotiation without publication of a call for tender that were brought to its attention by the contracting authority, as required by law.
6. The Constitutional Court’s view on the possibility of filing a complaint in a public procurement award procedure directly with the dispute resolution court.
The objection of unconstitutionality with respect to the provisions of Art. 255 para. (1) of GEO 34/2006 was dismissed by the Constitutional Court by Decision 284/2012.
In support of its decision, the court stated that “Pursuant to the Government Emergency Ordinance 34/2006, seeking remedy before a dispute resolution court is not a mandatory requirement but an option to which the harmed party is entitled”.
It is also relevant to mention the interpretation of the Constitutional Court, according to which the possibility of seeking remedy before a dispute resolution court “does not prevent the respective person from seeking remedy before a judicial court, if they consider that this serves their best interest”.
II. The Opinion of the European Commission
At the request of ANRMAP, the Internal Market and Services Directorate General – Public Procurement Policies of the European Commission expressed its view on the circumstances under which certain variations of quantities/prices in public procurement agreements for works may be deemed as modifications of the initial agreement. In this regard, the European Commission established, in its clarification, “that such are not a modification of the initial agreement and only an application of the provisions of the initial agreement”, with respect to the situations where the respective variations in the quantity of the materials actually used in the execution of the agreement:
- were clearly bargained for in the agreement by way of “variation clauses”, thus avoiding future discretionary modifications which may affect the conditions of the initial competition;
- result exclusively from the normal application of the variation clauses of the initial agreement, except for any other modifications of its requirements
It is also stated that in order for the variations in the price/quantities of the materials used to be legally applicable, they need to be clearly incorporated in the variation clauses and the calculation formula of the final price must be objectively determined in the initial agreement.
As part of the qualification of the variations, the Commission sets forth an important principle, whereby: “any variation in quantities/price which does not result from the automatic application of the aforementioned initial variation clauses will be treated as a modification of the agreement. If the modification is a substantial one, the contracting authority will need to rebid the agreement.”
