PUBLIC PROCUREMENT: NEW RULES ON CONTRACT PRICES REVIEW

The prices of public procurement / sectoral / concession contracts / framework agreements for products and services can now be revised upwards or downwards according to costs’ rise or fall as compared to the contract prices.

This measure, provided for by the GEO no. 47 published in the Official Journal n° 377 of April 15, 2022, completes the provisions of the GO n° 15 of August 30, 2021, which had allowed prices adjusting only for public procurement contracts / sectoral / concession contracts / framework agreements for works.

The provisions of GEO no. 47/2022 apply to contracts / framework agreements related to objectives / investment projects / maintenance works and routine or major repairs, funded, in part or in whole, by public funds or by the own funds of the contracting authorities / contracting entities, concluded based on Laws no. 98/2016, 99/2016 and 100/2016 and the GEO No. 114/2011 on the award of specific public procurement contracts in the fields of defence and security. The aforementioned changes are deemed non-substantial and therefore do not require opening a new award procedure, but only the conclusion of an addendum to the contract / framework agreement.

Application domain

The price adjustment concerns:

1. Ongoing works contracts / framework agreements at the date of entry into force of the GEO n°47, i.e. April 15, 2022:

1. concluded before the entry into force of the Laws 98/2016, 99/2016 and 100/2016;
2. concluded after the entry into force of the Laws 98/2016, 99/2016 and 100/2016, regardless of their duration and which do not provide for a price review clause;
3. which contain a price adjustment clause provided for in GO 15/2021;
4. which provide for a firm price.

2. Ongoing contracts / framework agreements for the supply of products at the date of entry into force of the GEO no. 47:

1. for the supply of technological and functional equipment / tools, necessary for commissioning and/or equipping and providing tools for the objectives or investment projects / maintenance works and routine or major repairs, according with the intended use or strictly necessary for the performance of work related to one of the activities provided for in Appendixes 1 to the Laws no. 98/2016, 99/2016 and 100/2016 ;
2. for the purchase of technological and functional equipment or tools mentioned above, as well as the purchase of products intended for maintenance / repair / administration / operation of national, departmental or local interest roads, and which are purchased under separate public procurement contract; c) which provide for a firm price.

3. Ongoing contracts / framework agreements for services at the date of entry into force of the GEO no. 47, which regard carrying out feasibility studies and/or technical projects, which do not contain any price review clause or firm price.

4. Ongoing contracts / framework agreements for works / products / services for the design of transport infrastructure of national interest at the date of entry into force of the GEO, regardless of their :

• containing a price review clause that can be applied after a certain period following the date of conclusion and / or in the event of the occurrence of certain conditions;
• containing a price review / price adjustment clause, other than those provided for in the GO no. 15/2021, linked to the inflation rate or to another index and the application of which entails, for the part of the contract remaining to be performed, to a lower adjustment than that which would result from the application of the provisions of the GEO no. 47/2022.

With regard to the date of opening of the public procurement procedure for the above-mentioned contracts / framework agreements, the provisions of the GEO no. 47/2022 also apply to contracts / framework agreements for works / products/services for the design of transport infrastructures of national interest where the award procedures are in progress at the date of entry into force of the ordinance.

The provisions of this ordinance do not apply to:

1. public procurement / sectoral / concession contracts / framework agreements relating to projects financed by non-reimbursable external funds ;
2. award procedures for projects financed by non-reimbursable external funds in progress at the date of entry into force of the ordinance ;
3. projects funded by the NATO Security Investment Programme.

Adjustment procedure : Conditions and deadlines

The price under the contract may be adjusted based on a legitimate payment request of the contractor, each time only with respect to services remaining to be performed / supplied on the date of entry into force of the GEO 47/2022, until finalising and acceptance of the works or until all products purchased are supplied and received /receipt of the technical documentation relating to the design services provided.

The contractors justify the adjustment by applying the total construction cost index, published by the National Institute of Statistics, using the calculation formula indicated in the ordinance.

The request for price adjustment: within 45 days from the date of entry into force of GEO no. 47/2022, contractors may request the contracting authorities / contracting entities to adjust the value for the remainder to be performed/provided, for all public procurement contracts they are party to.

Failure to submit the price adjustment request, within the deadline, results in forfeiture of the right to benefit of the provisions of the ordinance.

If the contract award procedure is in progress:

• (the award procedure is at a stage preceding the deadline for submission of tenders) the contracting authorities or contracting entities must modify the award documentation by introducing a price review clause;
• (the award procedure has already passed the tender submission stage), the contracts will be concluded according to the award documentation and the contractor must subsequently file the request for adjustment to the contracting authority or contracting entity within 15 days from the conclusion of the contract, and no later than the date of issue of the order to begin performance of the contract, under penalty of forfeiture.

The addendum is to be concluded within 10 days since submission of the request.

Amending of the contract: The contracting authorities or contracting entities are required to adjust the price, by concluding the addendum within 45 days after expiry of the deadline for submitting the request for adjustment.

It should be noted the final price of the contract is determined after submission of the last request for payment, based on the record of expenses which includes all the expenditure made under the contract, addenda included. The expenditure record must be assumed by the Performer, Site Supervisor and/or Engineer/Supervisor/Consultant, as appropriate, and approved by the Contracting Authority/Entity, under an addendum to the contract.