In 2016, the public procurement law was changed completely. Some of the most significant objectives were to improve the quality and speed of the procurement procedures. This summer, changes serving both goals came into force.
Changes to accelerate the procurement process
The most recent changes, which should shorten the periods of time needed for the award of the contract, include:
(i) Eliminating the contracting authority’s obligation to reveal partial results after every stage of the assessment of the tenders;
(ii) Shortening the minimum period to submit clarifications, granted by the contracting authority to tenderers, from three working days to one;
(iii) Eliminating the obligation to submit a prior notification before a contestation is filed with the Council for Solving Complaints (‘CNSC’) or with the court;
(iv) Reducing the time required to settle contestations by CNSC.
Although the changes to speed up procedures are welcome, they must be implemented in such way that they are not counterproductive and/or do not affect the quality of the procurement process.
Eliminating the obligation in point (i) aims in practice to reduce the possibilities to contest the partial results and thus to award the contract more quickly. The tenderers, as a matter of principle, can challenge only the end result of a procedure, but such contestations can relate to every stage of the assessment of the tenders; e.g. they can challenge the documents attesting the fulfilment of the selection criteria or the technical/financial offer. So the number and complexity of contestations of the end result could well increase. This measure, along with the time reduction for settling contestations by the CNSC, could influence the quality of the CNSC’s decisions. Within shorter time periods than before, the CNSC will have, in some cases, to assess more past procedure stages than before. As a result, court procedures could become more frequent. If the possible time needed for new assessments of tenders (according to the CNSC’s decision) is added, the measure could even lengthen the time leading to the actual contract awards.
The need for the change in point (ii) is, in our opinion, debatable. The difference of two working days is irrelevant, compared to the overall duration of a procurement procedure; it also creates a risk of affecting the quality of the goods/services to be acquired. If a contracting party requests clarifications – for example, about submitting further documents or more complex comments – a time limit of one day may not be realistic. In case a document must be issued by a public authority and translated afterwards, the mentioned time limit can in principle not be observed. Delaying the submission of the clarification leads to the offer being rejected.
The previous elimination of the maximum 25-day period to assess tenders by the contracting authorities was, in our opinion, an attempt to guarantee the quality of the procedure. In this context the change mentioned in point (ii) seems to be rather disproportionate; while the authority, in theory, no longer has a deadline for its assessment of the tenders, it could compel the tenderers to submit clarifications within one working day.
Changes to increase the quality of the procurement process
Along with the changes mentioned above certain regulations came into force which aim to increase the quality of the procurement process.
For instance, contracts will now be awarded according to the lowest price criterion only when the estimated value of the contracts does not exceed the following thresholds:
- RON 24,977,096 for public works contracts;
- RON 648,288 for public supply and service contracts;
- RON 994,942 for public supply and service contracts awarded by regional or local councils, the General Council of Bucharest and their subordinated institutions;
- RON 3,376,500 for public service contracts for social and other specific services.
Another interesting change concerns the purpose of the assessment factors which must be established by the authority. They must create a real advantage and not be purely structural. In the process of assessing and verifying the award criterion, their application must be traceable.
Two years after the new public procurement legislation came into force, the Romanian legislator is still struggling to find a balance between quality and speed. In the same time the frequent changes in the public procurement law make its application more difficult.