Public Procurement and PPP

We are recognized for delivering tangible added value to both the investor and public sectors, thanks to our understanding of sophisticated issues of project development and our negotiation skills, which make us stand out in the Romanian legal market.

Our practice encompasses:

• public procurement proceedings
• expropriation
• public administration
• commercial and financing contractual issues in the development of infrastructure projects
• specific contract issues in a rapidly changing business environment
• legal guidance and facilitation of the post-closing day-to-day implementation of contracts
• resolution of contractual disputes

Our team’s knowledge and practical know-how are based on solid and extensive expertise in traditional public procurement and financing structures. The benefits of these pillars are enhanced by our up-to-date understanding of the ongoing developments, such as public-private partnership schemes, and our awareness of the legal and economic factors that can drive the success of our clients’ infrastructure projects.

In the context of the sophisticated existing projects and of the challenges triggered by the transnational participations to public procurement procedures, the collaboration with specialized lawyers in consultancy and litigation matters related to all stages prior to, during and post launching a public procurement procedure and up to signing a public contract, as well as in the implementation thereof, represents a “must” for the players on the market.

Our many years of experience with the EU and Romania’s rapidly evolving public procurement rules places us in a unique position to accurately interpret and resolve legal questions on behalf of our clients on both major projects and day to day procurement issues (either for bidders or contracting authorities).

We employ a wide variety of legal concepts and are knowledgeable with respect to all aspects of procurement rules, including the relevant EU directives, the European Commission’s policy in public procurement aspects in general, the field of utilities, defense procurement, offset and remedies in particular, as well as the case law of national courts and of the Court of Justice of the European Union.

We are known to be valued by clients for how we integrate our legal expertise, our capacity to understand the technical implications of each specific project and the multi-disciplinary experience to help them shape their operational objectives and transaction parameters into realistic business scenarios adapted to the restrictive public procurement rules, as well as for the ability to anticipate the often-changing demands and expectations thereof.

Our team has gained valuable capital of business-oriented thinking and acting for our clients performing their activity in different industries due to the involvement in the most important projects developed in Romania during the last years in various sectors, in terms of:

• magnitude of projects (investment value, strategic importance, layout/affected areas) and
• complexity of legal work (in many cases performed from the day one of the launch of the procedure and until the completed execution of the public procurement contract)

Thus, our one-of-a-kind team has handled a portfolio of projects mirroring the country’s development of major projects, being valued for providing creative solutions to complex legal issues and for the heavyweight practice, centered on:

• supplies, services and works
• road (motorways / national roads), railway and water treatment infrastructure
• modernization of new port/airport facilities or expansion of existing port/airport facilities etc.

In a legal field where time is of the essence (given the short deadlines to be observed in different stages of the award procedures and in case of litigations), we understand and anticipate the needs of our clients (bidders and contracting authorities) and have the best resources to promptly address them in terms of integrated legal assistance during all stages of a public procurement procedure, both for consultancy and litigation matters.

This justifies the high level of client satisfaction with professional and service standards, emphasized by the rate of returning and multi-mandate clients.

We understand all aspects of procurement rules, as the multifaceted projects handled so far and the sensitive theoretical concepts developed in the field challenged our team members to overspecialize in different sectors of the public procurement domain, including niche sectors, all of them including:

• classic public procurement
• utilities
• defense procurement and offset
• framework agreements, electronic tenders
• concessions
• fulfillment of the selection and qualification criteria and of the technical specifications
• challenges against the award documentation or against the procedure result / defense of the procedure result
• claims for the suspension of the award procedures and/or of the public procurement contracts
• contractual matters
• case law of national bodies (National Council for Settlement of Disputes in Public Procurement (CNSC, the Romanian acronym) and competent courts) and of the Court of Justice of the European Union
• active implication in the reforms of the legal framework, including in respect of the transposition into Romanian law of the 2014 directives in the public procurement field

Public Procurement Litigation

Drawing upon the resources of the entire firm, we build multi-disciplinary teams that combine legal expertise and practical business insight to generate the professional synergy needed for optimal results in infrastructure and project related disputes. As a result of our integrated approach, we can address the challenges confronted by our clients in all phases and variations of the dispute resolution process.

Our most valuable resource in the public procurement litigations is the double-fold specialization of our lawyers in both consultancy and disputes, allowing us to develop an in-depth knowledge of the most sophisticated issues (both theoretical and practical) while always being aware of the pragmatic approach taken by CNSC and by the courts of law and of the existing practice.

Based on our multidisciplinary strength, we deliver sophisticated legal assistance and representation in the complete range of public procurement litigations in all the phases, as follows:

Before the conclusion of the public procurement contract:

• assisting clients in bringing before CNSC or before the courts challenges to decisions of the contracting authorities involved in a public procurement proceeding, regarding:
  1. unlawful or unjustified  requirements of the award documentation or of the subsequent clarifications
  2. unlawful or unjustified clarifications requests during the bids evaluation stage
  3. unfavorable procedure result
  4. the suspension of the award procedure
• defending the procedure result (on behalf of the successful bidders or of the contracting authorities)
• challenging or defending the CNSC decisions before the courts of appeals
• expertise regarding public procurement related litigations before Romanian Constitutional Court and before the Court of Justice of the European Union

After the conclusion of the public procurement contract:

• formulating requests for the suspension of the contract performance or for the annulment thereof
• defending the bidders against requests for the suspension of the contract or for the annulment thereof
• submitting claims related to the performance of the contracts
• providing support in defending the contractual position of our clients during the pre-litigation phase of the conflicts arising from the contract implementation

The most notable projects in which we provided legal assistance or representation are to:

• several notorious international (German, Austrian, Italian, Spanish) and Romanian infrastructure services providers, in several complex and high-value (millions of EUR) public procurement procedures organized by the Romanian National Railways Company (CFR) to rehabilitate railway sections for high speed trains circulation for Pan-European corridor IV and subsequently, both as regards the relevant litigations stages (from challenging the requirements of the award documentations to disputes related to the procedure result and the concluded contracts), as well as, to some of them, in the contract performance stage
• Austrian, Spanish, Romanian, Italian bidders, in challenging or defending the procedure results in high value projects regarding the extension and the modernization of highways,  roads, tramways infrastructure and/or, respectively,  in contract implementation phase
• one of the largest American oil producers, in its capacity as contracting authority, on various issues regulated by the Romanian public procurement law, including in litigations before CNSC and before the competent courts of law
• an Austrian reputable player in the field of airport facilities and its local presence (together with the consortium members) in order to defend or challenge the procedure result in major modernization projects launched by two airports in Romania
• a leading German infrastructure provider, in the phase of court claims/ counterclaims regarding the contracting authority’s award decisions in several public procurement procedures for the construction of waste water management industrial units and respectively for the extension and the modernization of an airport in Romania, as well as in connection with sophisticated contractual matters arising from their projects
• the Romanian subsidiary of a major Dutch dairy and beverages producer in drafting of offers, as well as in judicial proceedings arising from certain public procurement procedures
• a large Spanish infrastructure company, in a road rehabilitation procurement project and related litigation proceedings for ensuring the bid finalization and conclusion of the public procurement contract
• a consortium of notable companies acting in the natural gas field, in successfully defending the award of a contract related to the supply of turbo-compressors

Ensuring Compliance with Romanian and EU Public Procurement Law

We provide assistance in connection with the entire Romanian and EU legal framework applicable in the public procurement field, as follows: “classic” public procurement; utilities; defense; concessions; remedies, as well as PPP.

We guide clients in understanding and implementing the applicable legal framework, in terms of:

• interpreting the primary and secondary normative acts enacted at national level
• analyzing the impact of the rules applicable at EU level (especially the relevant directives and regulations in the public procurement field, including the “soft law”)
• scrutinizing controversial or unclear provisions of the public procurement law
• encompassing certain activities or entities in the scope of the public procurement law

Our breadth and depth of experience in public procurement law has evolved so quickly over the past 20 years that it makes us the international law firm of choice for clients who need solid legal advice and support in Romania or with respect to Romanian law.

In order to actively respond to the needs and expectations of our collaborators, the public procurement practice group is:

• a regular pro-bono contributor to the professional or investors’ associations involving in the enhancement of the legislation governing public procurement and traditionally procured works, as part of a long-term business community commitment and effort to facilitate the development of Romania’s projects
• provider of feedback regarding new normative acts, including in connection with the transposition into Romanian law of the 2014 directives in the public procurement field
• drafter of cornerstone legislation on expropriation for high scale infrastructure

For the most notable projects in which we provided legal assistance or representation, please refer to the  section on transaction structuring and business operations.

Transaction Structuring and Business Operations

Since the public procurement procedures and contracts are to a certain extent restrictive from the perspective of the requirements imposed by contracting authorities, our advice is most often requested in order to tailor the commercial expectations of the clients to the award documentation.

We aim to recommend the transaction structures that best fit and advance our clients’ interests, but also to comply with the public procurement law and the award documentation.

We assess the compatibility of our clients’ day-to-day business conduct to point out and reduce business behaviors that could trigger high legal risks.

Our assistance is usually required as regards the following aspects:

When assisting bidders:

• choosing the best formula (bidder – consortium – subcontractors – supporting third parties) for participating in public procurement procedures in order to comply with the requirements
• providing advice regarding the risks and the liability resulting from the template contract made available by the authority
• providing comments to the draft contract
• assistance during the execution of the contract

When assisting contracting authorities:

• choosing the applicable public procurement procedure
• drafting the award documentation and the subsequent documents in order to comply with the applicable provisions
• assistance during the performance of the contract

For building a PPP related contractual framework and to negotiating it with the relevant public and private sector parties, we collaborate with the banking and finance representatives. This helps our clients identify and address issues before they turn into crisis, and ensures a more cost-effective project implementation. For example, we assisted two potential investors, acting separately, in structuring public-private partnership contractual relationships with the Romanian state for the purpose of the construction, upgrade, operation and maintenance of certain proposed motorways. We guided the investors in critical steps such as:

• tendering procedure
• expropriation
• permits and authorizations
• utilities and road administration
• preparation of the documentation necessary to achieve commercial and financial closure.

We provided legal assistance or representation to:

• several national and worldwide actors in the water treatment plans domain, in connection with projects regarding the rehabilitation or extension of water treatment plants and modernization and extension of water and sewage infrastructure organized by various administrative-territorial units / local or county authorities
• a leading company in telecommunications sector, in procurement procedures organized by the Romanian National railways to ensure the implementation of the railway communications infrastructure at the national level, based on the latest GSM-R and ETCS level 2 technologies, involving sophisticated award documentation terms, demanding a combination of both public procurement expertise and skilful understanding of the technical requirements and conditions to be met by bidders
• the Romanian subsidiary of a global leader in power and automation technologies based in Zurich, in the negotiating and concluding of public procurement agreements in several projects, including the refurbishment of several Romanian electricity station
• the Romanian subsidiary of France’s national gas distribution company, on various public procurement matters
• the local company of a German supplier of medical equipment, as regards its participation to various public procurement procedures
• the developers of a trans-border energy infrastructure project, concerning local public procurement matters
• a leading Swiss company providing solutions and services for secured identification, traceability, and authentication, on the applicable public procurement procedures with respect to the printing activity of banknotes and alcohol and tobacco stamps

Compliance with the Award Documentation and Assistance Regarding the Preparation of the Bids

Given the complexity of the public procurement procedures, the numerous requirements to be observed and the considerable number of documents to be submitted as part of the bids/candidatures, we are constantly mandated to provide consultancy (both to economic operators and contracting authorities) during the entire period spanning from the launch of a public procurement procedure until the signing of the public procurement contract.

In a considerable number of cases, we have provided full support during the entire process, while in numerous situations, our advice has been requested on punctual matters, in most of the cases on very sensitive issues perceived by the clients as a “no go”.

Our contribution is particularly useful to foreign bidders and entities qualified as contracting authorities participating to/organizing public procurement procedures in Romania, and who are not fully familiarized with the formalities or the formalism of the procedures.

We are called to assist on:

• reviewing and interpreting award documentations, most of them comprising sophisticated wordings, demanding a combination of both public procurement expertise and skillful understanding of the technical requirements and conditions to be met by bidders
• drafting clarification requests to be sent to the contracting authorities on the requirements of the award documentation
• challenging unlawful or restrictive requirements
• reviewing the template public procurement contracts and providing feedback on the major issues or risks resulting from their provisions
• preparing sections of the bids by filling-in the standard forms provided by contracting authorities and other documents having as objective the fulfillment of the requirements
• reviewing parts of the bids drafted by our clients
• drafting or providing assistance in drafting the award documentation or other  documents usually prepared by contracting authorities in the context of a public procurement procedure

For the most notable projects in which we provided legal assistance or representation, please refer to the  section on transaction structuring and business operations.

Assistance During the Bids / Candidatures Evaluation Stage

The clarifications provided by the bidders to the contracting authorities during the phase of the bids/candidatures evaluation may be, in many cases, crucial for establishing the admissibility of the bids, given the legal restrictions existing with respect to the modification and the completion of the bids.

Therefore, our clients value our advice provided with respect to the following aspects:

When assisting bidders:

• drafting answers to clarifications requests
• reviewing the answers to clarifications requests prepared by our clients
• challenging unlawful or unjustified clarifications requests
• verifying the case-law developed on matters on which clarifications requested are asked by contracting authorities
• recommending preferable approaches between several possible

When assisting contracting authorities:

• providing support regarding compliance of the bids/candidature with the applicable law and the award documentation
• drafting or reviewing various documents prepared during the bids evaluation stage (procedure report, notifications regarding the procedure results to be sent to participants)

For the most notable projects in which we provided legal assistance or representation, please refer to the  section on transaction structuring and business operations.

Assistance During the Implementation of Public Procurement Contracts and in Connection with Post-Contractual Matters

The clients assisted during the phase of the preparation and evaluation of the bids and/or during the pre-signing litigation stage usually mandate us to assist them in respect of the potential legal issues that may occur during the performance of the contract. In addition, other clients request our assistance in particular with respect to contractual disagreements likely to degenerate into litigations.

The phase of the performance of the public procurement contracts may trigger a wide range of legal issues in connection with:

• the interpretation of contractual provisions or the prevalence among contradictory provisions, including for FIDIC-based contracts
• the limits to be considered when intending to amend a public procurement contract
• intended changes to the component of the successful bidder / consortium
• claim resulting from the defaults of the other contractual party in performing its obligations
• changes in the law impacting upon the contract
• disputes related to the contract
• post-contractual obligations of the parties

The most notable projects in which we provided legal assistance or representation (in addition to the ones mentioned under public procurement litigation section above) are to:

• Italian, German and Spanish clients in connection with the implementation of railway / motorways construction / rehabilitation contracts, both in respect of raising and substantiating the contractor’s claims under the contracts, presenting the client’s position to requests received from the contracting authorities, as well as regards disputes in front of the competent courts or arbitration tribunal arising under the contracts
• a major German construction company, specializing in the manufacturing of pipelines and sewers, in connection with the implementation of various public procurement contracts concluded in water utilities sector
• a major American infrastructure services provider, concerning the implementation and readjustment of the contractual relationship with the Romanian State governing over 400 km of motorway between Brasov and Bors