Latest amendments to the public procurement framework

√     Reduction of various deadlines within the public procurement process
√     The public procurement contract is to be signed following the issuance of the decision of CNSC or first tier court

The public procurement legislation[1] has been recently amended and supplemented by Ordinance No. 3 dated 25 August 2021 published on 27 August 2021 with the Official Gazette (the Modification Legislation). The proposed amendments aim to simplify and reduce the deadlines within the public procurement process for the purpose of speeding up the award of the public procurement contracts. Such amendments also aim to enhance the absorption rate of European funds.

Most relevant amendments include:

  • The winning bidder does not longer need to provide fiscal certificates for all its secondary headquarters/points of work, but only an affidavit regarding the fulfilment of the obligation to pay the relevant taxes, fees and contributions. Under the former legislation, such obligation was too burdensome for the bidders having numerous secondary points of work.
  • Some procedural deadlines are reduced with the aim to shorten the overall tender process from up to 2 years (the current average length) to up to 6 months, including: (i) reduction of the term for preparation of the procedure report (including the intermediary reports), (ii) reduction of the deadline for the publication of the decision annulling the procedure or (iii) elimination of the possibility to extend the deadline for submission of the justifying documents for the European single procurement document (in Romanian, DUAE).
  • The public procurement contract has to be signed with the declared winning bidder following the issuance of a decision by either (A) the National Council for the Resolution of Disputes (CNSC) – confirming the result of the public tender or (B) by the court of law settling the complaint in the first tier of jurisdiction. Thus, there is no need to wait for the results of future complaints or the higher appeal, as the case may be. Thus, although not final, such decisions are enforceable.
  • No new evidence can be submitted within court proceedings for the annulment of the decisions issued by CNSC, other than those submitted together with the complaint previously solved by CNSC.
  • If compensation is sought by a bidder for the damages representing the costs of preparing the tender or of participating in the award procedure, the compensation which can be granted by the court is limited to the amount of such costs.

[1] Including, among others, Law no. 98/2016 on public procurement, Law no. 99/2016 on sectorial procurement, Law no. 100/2016 on work concessions and services concessions and Law no. 101/2016 on remedies and appeals concerning the award of public procurement contracts, the sector contracts, works concession contracts and service concession contracts and on the establishment and functioning of the National Council for the Resolution of Disputes.

 

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