New amendments to public procurement legislation

√     Doubled thresholds for direct award of contracts
√     Price adjustment in exceptional economic circumstances
√     New rules for public procurement litigation proceedings

The Romanian public procurement legislation was recently amended[1] for the purpose of facilitating public investments in the context of Romania’s national recovery and resilience plan (PNRR) implementation. Also, the changes correlate primary and secondary legislation and improve the regulations that historically caused erroneous interpretation.

The new amendments will enter into force starting with 10 September 2022.

Main regulatory changes

  • Higher (doubled) thresholds for direct award procedures are established: (i) RON 270,120 (approximately EUR 55,000) for goods and services contracts and (ii) RON 900,400 (approximately EUR 180,000) for works contracts. Also, new thresholds were included for various types of direct award of the contracts.
  • Force majeure, fortuitous case or exceptional changes in circumstances may represent grounds for the adjustment of the price, subject to certain conditions.
  • A maximum deadline of 15 business days is introduced for the provision of clarifications by the bidders when the submitted documentation is incomplete or erroneous.

Procedural changes

  • Claims for damages suffered during procurement procedures and the disputes on the performance and termination of procurement contracts will be resolved in the first instance within 45 days, by administrative litigation courts.
  • The right of the National Agency for Public Procurement (ANAP) to request the declaration of the nullity of a contract is (again) regulated by the law, for contracts concluded with the breach of mandatory legal provisions.
  • Ascertaining certificates issued by contracting authorities, on the fulfilment/non-fulfilment of contractual obligations/damages caused by the contractor, may be challenged in front of the administrative litigation courts within a 30-day period as of receipt of the certificate by the relevant contractor.

[1] Law no. 208/2022 – amending Law no. 98/2016, Law no. 99/2016, Law no. 100/2016 and Law no. 101/2016 (public procurement and concession agreements’ legislation); published in the Official Gazette no. 697 of 12 July 2022.

 

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