Law no. 193/2013 approving and amending Emergency Government Ordinance no. 77/2012 came into force on 1 July 2013. This law has substantially modified the public procurement legislation (Emergency Government Ordinance no. 34/2006).
Autonomous administrations and/or national companies held wholly or mainly by public central or local authorities or other public entities are no longer classified as “contracting authorities” by the law and therefore do not have to apply public procurement rules. However, such entities must adopt internal rules for the acquisition of supply or “services contracts” where the value exceeds €30,000 exclusive of VAT and “works contracts” where the value exceeds €100,000 exclusive of VAT. Such internal rules must ensure that autonomous administrations and national companies observe the general principles of the public procurement legislation: non-discrimination, equal treatment, transparency, proportionality and mutual recognition.
The maximum contract value threshold for which the “contracting authority” is exempt from following public procurement rules has been increased: for supply and/or “services contracts” the value must not exceed €30,000 exclusive of VAT and for “works contracts” the maximum value is €100,000 exclusive of VAT.
The conduct of the contracting authority relating to the clarity of the awarding documentation has been detailed. For example, there will be a serious infringement on the part of the contracting authority if it drafts the awarding documentation in such a way that clarifications are needed and that such clarifications will modify the information already published unless the contracting authority provides such amendments at least six days before the deadline for the submission of offers.
There have been important amendments in respect of documents supporting the offer. For example, the requirement for the authenticated form of the third party’s firm commitment to prove either the economic and financial or technical and professional support has been eliminated. This seems to imply that a private document should satisfy the condition to prove the bidder’s firm financial or technical support from a third party.
Clarifications have been made in respect of the scope of the third party support. The law now expressly provides that quality standards certificates and environmental permits for the bidder’s activity may not be provided by a third party that supports the bidder either financially or technically.
The criteria establishing whether an offer provides for an apparently significantly low price have been simplified in that they now only relate to the price offered by the bidder. For example, a price value of less than 80% of the estimated value for the envisaged contract shall be deemed as an apparently significant low price.
Some favourable provisions for the bidder have been enacted. The amendments have imposed a minimum period of time – three days – in which the bidder may submit evidence that it had legally received state aid in case the contracting authority concludes that the reason for the apparently significantly low price is that the bidder was granted state aid. During this period of time the contracting authority may not reject the offer on the grounds that it provides for an apparently significantly low price. Another example is that the law expressly provides that the parties to a public procurement contract may agree to submit any dispute relating to the performance of such contract to an arbitral tribunal.
Another interesting amendment concerns the competency of the National Authority for Regulation and Control of Public Procurement (ANRMAP). The express possibility for ANRMAP to render null and void those contracts that were concluded with the breach of the contracting authority’s obligations under the awarding procedure has been repealed (e.g. failure to publish a contract notice; infringement of the conflict of interest rules; non-compliance with the selection or evaluation criteria). Further, the competence for hearing such disputes, which had been exclusively attributed to the Bucharest Tribunal and Bucharest Court of Appeals, was repealed. Consequently, it remains debatable if ANRMAP may challenge contracts that were awarded without the observance of the contracting authority’s legal obligations.