Public Procurement Newsletter No. 3/2012
1. Approval of the standardized documentation models for projects in the field of environmental infrastructure
Joint Order no. 2266/335/2012 of the president of the National Authority for the Regulation and Monitoring of Public Procurements and the minister of environment and forests concerning the approval of the standardized documentation models regarding the award procedure of public procurement contracts for public works of “design and execution of the water treatment plant/sewage treatment plant”, “execution of sewage and water distribution networks”, “design and execution of sorting, composting and mechanical-biological treatment of waste station”, “execution of compliant waste storage” was published in the Official Gazette no. 410 of June 20, 2012. Pursuant to this order, the new standardized documentation models regarding award procedures for public procurement contracts for public works with respect to the aforementioned projects were approved, in order to facilitate and improve the public procurement system, to improve the degree of absorption of community funds allocated to Romania and to prevent the occurrence of errors in the award process of the public procurement contracts.
The new standardized documentation models regarding award procedures for public procurement contracts for public works with respect to the aforementioned projects are mandatory as of June 20, 2012.
The aforementioned award documentation that does not observe the standard form provided by the Order of the minister of environment and forests and of the president of the National Authority for the Regulation and Monitoring of Public Procurements no. 2266/335/2012 will be accompanied by the statement of the designer and/or the statement of the legal representative of the contracting authority concerning the observance of the technical requirements provided in the standardized documentation according to the types of contracts, stating that it includes all the information detailed as specified in these models. This statement will be uploaded on S.E.A.P. along with the award documentation and the justifying notes required by the public procurement law.
2. Change of the duties of the National Authority for the Regulation and Monitoring of Public Procurements
Government Decision 760/2012 for the amendment of the Government Decision 525/2007 concerning the organization and functioning of the National Authority for the Regulation and Monitoring of Public Procurements was published in the Official Gazette no. 538 of August 2, 2012.
Pursuant to this, A.N.R.M.A.P. no longer provides opinions on the requests for clarification sent by the contracting authorities / possible offerors / management authorities with regard to the method of interpreting the legal provisions in the field of public procurement; according to the same normative act, A.N.R.M.A.P. will solve all requests for opinions that were received until its enforcement, namely until August 17, 2012.
3. The opinion of the Constitutional Court with respect to the possibility of filing objections within a public procurement procedure directly with the administrative dispute court
The unconstitutionality objection concerning the provisions of Art. 255 para. (1) of GEO 34/2006 was dismissed by the Constitutional Court by Decision no. 507 of May 15, 2012.
In support of the decision rendered, the Constitutional Court held that “in Art. 255 para. (1) of the Government Emergency Ordinance 34/2006, the law did not set forth the persons’ obligation to use only the administrative-jurisdictional way before the National Council for Solving Complaints. On the contrary, the expression “may request” implies the recognition of the opponent’s capacity to start an administrative-jurisdictional means of challenge and not at all an obligation to use such means.”
The Court also held that “the challenged provisions fully satisfy the constitutional requirement of Art.21 para. 4, pursuant to which “the special administrative jurisdictions are optional and free of charge”, the harmed entity having the possibility to choose between challenging the administrative deed by administrative-jurisdictional means and filing a direct action in court pursuant to the general applicable law in the field of administrative disputes.”
4. Recent case law of the European Union’s Court of Justice (“EUCJ”)
By means of the decision rendered in case C-599/10, EUCJ stated expressly that Directive 2004/18 provides no obligation for the contracting authority to request from the offerors/candidates clarifications with respect to the technical offer, as the ambiguous nature thereof is derived from their lack of diligence. However, the existence of a legal obligation for the contracting authority to verify the possible inconsistencies is not deemed as contrary to the Directive 2004/18 (in line with Art. 79-80 of the GD 925/2006), provided that it does not lead to the submission of a new offer or to favor certain offerors (this is why EUCJ specifies that the request for clarifications of an offer must be raised only after the contracting authority analyzed all the offers submitted).
5. Proposals for the amendment of ANRMAP with respect to GEO 34/2006 and GD 925/2006
The National Authority for the Regulation and Monitoring of Public Procurements published on its website the project for the amendment of GEO 34/2006 concerning the award of the public procurement contracts, public works assignment contracts and service assignment contracts.
The main amendments proposed are directed at the following aspects:
- the labeling of the public procurement contract as administrative contract. Thus, the competent courts to solve requests related to these contracts will be the administrative and fiscal dispute resolution departments;
- the amendment of the threshold up to which the contracting authority may directly purchase products; the proposal amounts to EUR 30,000, VAT excluded, and the authority has the obligation to publish in SEAP a notification with regard to the acquisition made within maximum 5 days as of the date of the direct acquisition the estimated value of which exceeds the lei equivalent of EUR 3,000, VAT excluded;
- the amendment pursuant to EU Regulation 1251/2011 of the Commission, of the thresholds for which the publishing of the participation/award notice in the Official Gazette of the European Union is mandatory; with respect to the supply contract or the service contract awarded by the contracting authorities in the categories provided in Art. 8 letter a) – c) the threshold amounts to the lei equivalent of EUR 130,000 euro; with respect to the supply contract or the service contract awarded by the contracting authorities in the categories provided in Art. 8 letter d) or e) the threshold amounts to the lei equivalent of EUR 400,000; and with respect to the works contract the threshold amounts to the lei equivalent of EUR 5,000,000;
- the contracting authorities may amend and/or supplement the qualification and selection criteria in case of adopting certain remedy measures as result of the receipt of a notice from a business agent notifying the unlawfulness of such criteria, without the need for a CNSC decision;
- an unusually low price of an offer is defined as representing less than 70% of the estimated value of the respective contract, the current percentage of 85% being considered too close to the estimated value;
- the technical and professional ability of the offeror/candidate may be supported in view of performing a contract by another person, to the extent to which said support is directed exclusively at technical and/or professional resources. Thus, the third supporting party may grant its support to the offeror/candidate only with respect to technical endowment, as follows: equipments, personnel, work procedures, etc., but cannot provide support by proving similar expertise as requested by the contracting authority by means of the award documentation
