In the following article we will explain the important role played by the so-called ascertainment documents (rom. documente constatatoare) in the award procedures.

Ascertainment documents

According to the law[1], a contracting authority must issue documents ascertaining the fulfilment or the non-fulfilment of the contractual duties by the contractor, as well as any possible damages. This also applies to an unjustified refusal to conclude the contract and the termination of the contract for good cause.

These ascertainment documents represent administrative acts that can be challenged. Within 60 days as their issuance, but after the period allowed for their contestation has elapsed/ deciding upon their contestation, they will be published in SEAP (Electronic System for Public Procurement). After that, all contracting authorities have access to them and must observe them. The contracting authority has the obligation to update the information available in SEAP within 5 days as of the moment, when it takes notice that the circumstances based on which such document has been issued must be amended for objective reasons.

Exclusion from award procedures based on ascertainment documents

According to the law on classic public procurement[2], a tenderer who has breached main obligations in a previous public contract[3] will be excluded from further award procedures, if:

  • he has repeatedly or seriously breached his main obligations and
  • these breaches have led to the early termination of the contract, the award of damages or other comparable sanctions.

Specifically, according to the law, ‘serious breaches’ mean for instance non-fulfillment of the contract or major deficiencies in the goods / services / works delivered, which make them impossible to use for their designated purpose.

The contracting authority must verify whether the two conditions are met. In order to do so, it must demand clarifications from the respective tenderer.

As specified in law[4], the tenderer has the right to provide evidence of concrete and sufficient measures which prove his reliability. If it does so, it cannot be excluded from the procedure. Evidence might include:

  • payment of or commitment to pay compensation of all damages caused by his criminal offence or misconduct;
  • thorough clarification of the facts by full cooperation with the investigating authorities;
  • precise technical, organisational and staff-related measures that have already been taken to prevent further misconduct and criminal offences (e.g. termination of legal relationships with persons or organisations at fault; setting up control and report systems or internal audit structures for checking legal provisions, internal rules on liability and damage compensation).

The abovementioned legal provisions are not applicable when the tenderer is subject to an interdiction applicable in Romania on taking part in award or concession procedures.

If the tenderer is based outside Romania, the contracting authority must accept every clarifying official document from the tenderer’s country of origin as sufficient and relevant. If the documents cannot be issued in the country concerned, the contracting authority will have to accept a statement in a form stipulated by the law. If the contracting authority has doubts about whether or not the tenderer’s misconduct justifies exclusion, it is entitled to the necessary information from the foreign authorities.

Conclusion

The contracting authority is not allowed just to exclude a tenderer from award procedures based on an ascertainment document published in SEAP. It must verify whether the two legal conditions are met, by analysing the circumstances and the evidence brought by the tenderer. The proportionality of the measure must be taken into account as well. Since there are no precise criteria regulating exclusion, the contracting authority is given some leeway in the decision-making process.

Tenderers for which inaccurate ascertainment documents have been issued must challenge them in court to retain a real possibility to participate in award procedures. Exclusion from the procedure itself can obviously be challenged. In this case, the chances of success are usually higher.