Last updated: 19 March 2020
The legal framework governing public procurement procedures has recently been subject to amendments under the Emergency Ordinance of the Government no. 23/2020, published in the Official Gazette no. 101 from February 12, 2020. The adopting of such amendments is aimed at improving and rendering the public procurement system more flexible in an attempt to tackle delaying the implementation of certain major investment projects with social and economic impact on national or regional level.
Here below there is a brief overview of the most important changes brought by the Emergency Ordinance of the Government no. 23/220 to the Law no. 98/2016 on public procurement and to the Remedies Law no. 101/2016.
CONFIDENTIALITY OF THE TENDERS OF THE ECONOMIC OPERATORS
The law on public procurement state that the contracting authorities shall not disclose the information forwarded to them by economic operators, which they have designated as confidential, including, but not limited to, technical or trade secrets and the confidential aspects of the tenders. In this respect, the economic operators had an obligation to account for the confidential character of the information provided for under the tenders and an obligation to outline, within the tender, such information that is subject to confidentiality obligations.
According to the new modifications, for such information, deemed as confidential by the economic operators, they must provide underlying proof of the confidential character thereof. Failing to produce such proof shall result in the contracting authorities’ allowing access to such information to any person interested. Therefore, all current practices whereby the economic operators would justify the confidential character by simply stating confidentially or by applying a stamp mark mention „confidential” on the documents are no longer considered as sufficient proof for confidentiality.
The economic operators’ obligation to prove the confidential character of the information provided under the tenders has been so far mandatory for accessing the file submitted to the National Council for Solving Complaints (Romanian C.N.S.C.). This modification brings by the obligation to comply with such requirements also in the case of the files submitted to the contracting authorities.
STAMP DUTY
The new modifications entail changes in relation to duty stamp to be paid up in case of challenges before the courts and those submitted to National Council for Solving Complaints (Romanian C.N.S.C.).
Thus, in the event of a challenge lodged before a judicial authority, the plaintiff must pay duty stamp accounting to 2% of the estimated value of the contract though not exceeding LEI 100.000.000. Such duty stamp shall be paid up also in the event an indemnity for prejudices infringed thereupon during the award procedure for the execution, annulment / nullity, termination or unilateral denunciation of the public procurement contracts.
The appeal lodged against the decision rendered in settlement of a complaint is subject to the payment of a fee amounting to 50% of the fee hereinabove, mention being made of the fact that when filing an appeal, the awarding authorities are exempted from the payment of duty stamps.
In the event that the person claiming to be prejudiced should file a complaint with the National Council for Solving Complaints (Romanian C.N.S.C.), such person is bound to pay a guarantee amounting to 2% of the estimated value of the contract or of the value of the tender awarded, as the case may be.
For procurement procedures divided by lots, both stamp duty and the guarantee shall be determined by reference to the estimated value of each contested lot. For framework agreements procedures, the amount of the duty stamp shall be determined by reference to the double of the estimated value of the highest subsequent agreement to be awarded under the framework agreement concerned.
OTHER MODIFICATIONS
Another very useful modification brought by is the way to calculate the guarantee due in the event of a complaint filed with the National Council for Solving Complaints (Romanian C.N.S.C.). Thus, if the amount of the guarantee was priory calculated pursuant to the estimated value of the contract or the fixed value of the contract, although in practice such notion was not coherently construed, further to the modification, such notion was replaced by „the value of the tender selected tender under the procedure report”, which renders such calculation much easier.
As far as the grounds for exclusion of the economic operators from the public procurement procedure is concerned, pursuant to the new modifications, the awarding authorities are bound to assess the measures taken by the economic operators in order to prove their credibility at the same time considering the particular circumstances of the concerned infringement or violation.
Bucharest, 12 March 2020