On 10 May 2016, the Romanian Parliament adopted a new public procurement legislative package (after several unsuccessful attempts due to lack of quorum). The package implements three European Directives on public procurement (Directive 2014/23/EU, 2014/24/EU and 2014/25/EU) and consist of four laws: Public Procurement Law; Sectorial/Utilities Procurement Law; Law on Concession of Services and Works; and Law on Remedies and Challenges within Public Procurement Procedures. The transposition process will be complete once the package is promulgated by the Romanian President and published in the Official Gazette (however the transposition will come after the 18 April 2016 implementation deadline set out in the EU Directives).
The new legislative package brings significant substantive and procedural changes to the procurement process in Romania. Some of the most significant substantive changes include:
- contracting authorities can now choose between four award criteria when evaluating bids: lowest price; lowest cost; best-value for money; or best value for cost, depending on the particularities of each contract;
- thresholds for awarding public procurement contracts have been amended in accordance with EU rules;
- participants are now required to initially submit only the European Single Procurement Document, making eligibility for participation in public procurement more flexible;
- reduced time limits within the award procedures;
- introduction of a variety of new simplified procedures, such as, the simplified award procedure for contracts which do not exceed the legal thresholds;
- express conditions regulating the modification of public procurement contracts.
Regarding procedural changes, the new legislation, in particular the Law on Remedies and Challenges within Public Procurement Procedures, contains the following significant changes:
- consortium members may now individually submit challenges to the National Council for Solving Complaints (CNSC);
- prior notice submitted to the contracting authority regarding the alleged unlawful acts is now a condition of admissibility for the challenge to be submitted to CNSC;
- detailed provisions governing the right of interested parties to opt between submitting challenges regarding the award procedure to CNSC or judicial courts;
- suspension of the award procedure or a stay of contractual performance is now subject to strict conditions and requires placement of a bond;
- elimination of the good conduit guarantee and the possibility for participants to challenge award procedures without the risk of having to pay such guarantee to the contracting authority in the event of unsuccessful claims.
The new legislation is expected to enter into force in a matter of days or weeks and will pose challenges to both contracting authorities and private operators due to the novelty of its provisions and because of the many aspects which require further clarification via methodological norms. According to ANAP officials the related methodological norms are already undergoing the endorsement procedure within relevant ministries and will be enacted shortly after the new laws enter into force.