Legislative amendments aiming the timely implementation of major investment projects

√     Clarifications related to the negotiated procedure without prior publication
√     Changes and clarifications related to the tender process and performance of contracts
√     New timelines for public procurement litigation proceedings

Romanian Government has recently significantly amended the public procurement legislation[1]. The amendments were made for ensuring that the major investment projects (such as national infrastructure, high value or utilities infrastructure projects) are implemented within the deadlines provided under the Romania’s national recovery and resilience plan (PNRR) and other EU-financed projects. Also, some other pieces of legislation (related to works’ execution, urban planning and expropriation) were amended in order to facilitate the implementation of such projects.

Regulatory changes

  • Negotiated Procedure: the amendments clarify the situations in which the procedure can be used and permit the establishment of an extended duration for the agreements concluded within such tender procedures. The rationale for such extended duration is given by the need to cover the warranties and final acceptance of works periods under the contractual term.
  • The concept of the “abnormally low tender” is clarified as an offer having a price that is below 80% of the estimated value of that contract. Such approach was also taken in the past in the former public procurement legislation.
  • Specific deadlines are provided for the request and the provision of supporting documents for the European Single Procurement Document (DUAE).
  • The contracting authorities are now permitted to make payments directly to sub-subcontractors, providers of goods and services and other entities participating in the execution of the contract.
  • The contracts for the supply of goods / services with a duration exceeding 24 months and the contracts for execution of works concluded for more than 6 months must mandatorily include a price adjustment / revision clause.

New deadlines for litigation proceedings

  • Litigation on the performance and termination of contracts: the deadline for the statement of defence filing is extended from 5 to 15 days; the total duration of the proceedings is also extended from maximum of 45 to 55 days. The change is justified by the complexity of such lawsuits.
  • Litigation related to the termination of contracts: the statute of limitation for the initiation of disputes related to the termination of the contract is reduced to 30 days. The aim of such change is to reduce the uncertainty regarding the status of public procurement contracts.
  • Interim injunctions can no longer be used to grant suspension of termination in case of litigation on the termination of public procurement contracts.

 

[1] Government Emergency Ordinance no. 26/2022 amending and supplementing normative acts in the field of public investments, published in Romania’s Official Journal no. 272 of 21 March 2022 and Government Decision no. 375/2022 amending and supplementing Government Decision no. 394/2016 and Government Decision no. 395/2016, both laying down Detailed arrangements on framework / public procurement agreements, as well as amending Appendices 1 and 2 of Government Decision no. 1/2018 on the general and specific conditions for some procurement contracts relating to investment projects financed by public funds, published in Romania’s Official Journal no. 277 of 22 March 2022.

 

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