Last updated: 8 September 2021
In an effort to simplify public procurement procedures, GO no. 3 of August 25, 2021, published in Official Gazette no. 821 of August 27, 2021, provides for the removal of certain documents previously required by national legislation in the matter, the reduction of certain deadlines and the simplification of the obligations of tenderers, as well as the modification of the maximum amount of the deposit to be made available by an economic operator challenging a public procurement procedure before the National Council for Solving Complaints (CNSC, in Romanian).
We are pleased to announce that the legislator has held the arguments presented by the lawyers of GRUIA DUFAUT Law Firm before the National Agency for Public Procurement (ANAP), within an assignment on behalf of the members of the French Chamber of Commerce and Industry in Romania (CCIFER), aiming at simplifying legislation, in the sense of removing the obligation of economic operators to submit tax certificates for secondary offices / work points to prove their capacity to participate in public procurement procedures.
Please find here below a quick overview of the main changes brought to the legislative package on public procurement, i.e. Laws 98/2016, 99/2016 and 101/2016.
SHORTER DEADLINES FOR PUBLIC PROCUREMENT PROCEDURES
1) Reduction of the maximum extended time frame granted by the contracting authority for drawing up the report on the procedure or the interim report; the previous 80-day deadline has been replaced by different deadlines, depending on the type of procurement procedure used, which cannot exceed:
- 50 working days (for the "competitive negotiation procedure" and "the competitive dialogue", as well as for "lot contracts")
- 30 working days (for the "open procedure", the "restricted procedure", "the innovation partnership ”and “the solution competition ”);
- 15 working days (for the "simplified procedure" and "negotiation without prior publication of a participation announcement")
2)Shorter time frame for publication of the decision to cancel a procedure: from 3 days to one day;
3) The deadline for submitting underlying documents for the information provided by a tenderer through the ESPD form (the single European procurement document, DUAE in Romanian) to be produced in a simplified public procurement procedure can no longer be extended.
It should be noted that the simplified procedures were often delayed, because - in addition to the 5-day legal deadline for the submission of supporting documents - the winning tenderer could request the extension of this deadline imposed by the contracting authority for an additional 5 days.
4)The deadline for cancelling / issuing an act or adopt corrective measures to restore legality by the contracting authority, after a decision rendered by the CNSC / court, is brought from 20 working days to 10 working days
LESS BUREAUCRACY
Removal of the obligation to produce tax certificates for all offices / secondary work points of economic operators to demonstrate compliance with the qualification conditions regarding the payment of taxes / social contributions.
According to the new legislation, the economic operator will only be required to present tax certificates for the main headquarters, while for secondary offices / work points a sworn statement will suffice to attest the payment of taxes or contributions due to the general consolidated budget.
CLARIFICATION OF CERTAIN TERMS
The new ordinance enacts a new definition of the term "subcontractor".
Thus, the subcontractor is "any economic operator who is not part of a sectoral contract and who performs certain parts or elements of works / services, being held responsible towards the contractor for the organization and execution of all necessary steps for this purpose."
The supply of equipment or materials / goods within the framework of a sectoral market contract / framework agreement is not deemed subcontracting / concession within the meaning of the law".
DEPOSIT: MODIFICATION OF THE MAXIMUM APPLICABLE AMOUNT
The maximum value of the deposit to be paid by a tenderer in the event of an appeal before the CNSC after the deadline for receipt of tenders has been considerably increased.
Thus, although the calculation formula to determine the amount of the deposit, namely 2% of the estimated value of the contract, has been maintained by Government Ordinance no.3/2021, the maximum values of the deposits now differ depending on whether the appeal has been made before or after the deadline for receipt of tenders.
So, if the estimated value of the contract equals or tops the thresholds provided for by the law 98/2016 and respectively by the law no 99/2016, the maximum amount of the deposit to be paid if the appeal is filed after the deadline for receipt of tenders has been increased from Lei 880,000 to Lei 2,000,000.
OTHER CHANGES
Other changes to the legislative package on public procurement relate to:
- The possibility for the contracting authority, which was previously obliged by the court to pay damages, to turn against the persons involved in the challenged procedure, insofar as they had been found guilty of serious professional misconduct by the court;
- Limiting the amount of compensation for damage due to the costs incurred for preparing the offer and participating in the procedure;
- The right of the contracting authority to sign the public procurement contract with the winning bidder, after the issuance of a decision by the CNSC / court, has now become an obligation. The new legal text also provides that the first instance decision is enforceable, without the possibility of blocking its enforcement;
- Bidders who file a complaint against the decision rendered by the CNSC cannot bring new evidence to that filed in the appeal.