Draft Instruction on the method of applying the provisions of Article 122, letter f) and Article 252, letter f) of Government Emergency Ordinance no. 34/2006

This Draft Instruction was published on March 20, 2014 on the official website of the National  Authority for the Regulation and Monitoring of Public Procurement and introduces a series of  clarifications as concerns the method of applying the procedure of negotiation without prior  publication of a contract notice for the acquisition of raw materials listed on commodity  exchanges, both in the case of classic public procurement contracts and in the case of sectorial  contracts.

Therefore, according to the draft instruction, the Contracting Authority may apply the procedure of  negotiation without prior publication of a contract notice for the acquisition of raw materials  listed on commodity exchanges, if the following conditions are cumulatively met: (i) the products  which are the subject matter of the public procurement contract must qualify as raw materials; (ii)  the products which are the subject matter of the public procurement contract must qualify as  fungible assets.

In addition, this draft instruction:

  • defines the term raw material by reference to the Romanian Explicative Dictionary (DEX), a raw  material being any natural product or semi-manufactured material, intended for processing or  transformation into other objects or the substance from which different objects are made;
  • makes a classification of raw materials and regulates the stages of the procedure of negotiation  without publication of a contract notice for the acquisition of raw materials listed on commodity  exchanges: drafting by the specialized department of the purchase requisition; drafting by the  internal department of the explanatory note; delivery of the purchase order to the Commodity  Exchange;  execution pursuant to the commodity exchange agreement of the public procurement  contract and preparing the public procurement file.

Draft Instruction regarding the method of applying the provisions of Article 122, letter i), and of  Article 252, letter j) of Government Emergency Ordinance no. 34/2006

This Draft Instruction was published on March 20, 2014 on the official website of the National  Authority for the Regulation and Monitoring of Public Procurement and it introduces a series of  clarifications as concerns the method of applying the procedure of negotiation without prior  publication of a contract notice for the purchase of certain additional/auxiliary works or services  which were not included in the initial contract, but which due to certain unpredictable  circumstances have become necessary for the fulfillment of the contract in question, both in the  case of classic public procurement contracts and in the case of sectorial contracts.

Therefore, according to the draft instruction, the Contracting Authority may apply the procedure of  negotiation without the publication of a contract notice only to those additional/auxiliary works  or services, whose necessity could not have been anticipated in any way by the conduct, according  to the legal provisions, of all studies and the use of all endeavors required in order to identify  the real needs of the contracting authorities, prior to the award of the initial contract, so that  their ascertainment being objectively possible only after the commencement of the performance of  such contract.

In addition, this draft instruction:

  • details the term unpredictable circumstances, improper planning of services/works and judicial  errors being excluded;
  • sets forth the conditions which must be cumulatively met in order for the contracting authority  to be entitled to apply the procedure of negotiation without the publication of a contract notice,  when it is required to purchase certain additional/auxiliary works or services, i.e.: (i) the award must be  made to the initial contractor; (ii) the additional/auxiliary works or services cannot be from a  technical and economical perspective separated from the initial contract or although separable, they must be  strictly necessary for its fulfillment; (iii) the overall value of the contracts to be awarded and  of the addenda to be concluded for additional or auxiliary works and/or services must not exceed 20% of the value of  the initial contract; and
  • it regulates the stages of the procedure of negotiation without prior publication of a contract  notice in this case.

Draft Instruction on the method of applying the legal provisions referring to the obligation to  complete the public procurement procedure and to conclude the public procurement contract, when,  upon the completion of the award procedure, the funds required for the performance of the contract  are not approved (Article 93 and Article 94 of Government Decision no. 925/2006)

This Draft Instruction was published on March 20, 2014 on the official website of the National  Authority for the Regulation and Monitoring of Public Procurement and introduces a series of  clarifications as concerns the method of applying the legal provisions referring to the obligation  to complete the public  procurement procedure and to conclude the public procurement contract,  when, upon the completion of the award procedure, the funds required for the performance of the  contract are not approved.

The draft instruction:

  • expressly outlines the possibility of initiating a public procurement procedure in case of  uncertainty as to the existence of financial sources with the observance of the condition by the  contracting authority to request the allotment of funds from the credit officer and with the  obligation for the authority to set forth in the tender documentation that the execution of the  contract is conditional upon the allotment of the necessary funds;
  • sets forth that irrespective of the moment when a tender procedure is initiated, the contracting  authority must identify, prior to the execution of the contract, the financing opportunities for  the proper fulfillment of such contract;
  • regulates the term “financing opportunity” as being the certainty of existence, at the time of  the contract’s execution, of the amounts approved in the budget of the public institutions, within  the limits and according to the purposes established by that budget; and
  • allows, in the case of a framework agreement, for the proof of existence of the amounts required  for making all payments related thereto at the execution thereof not to be necessary.