After the issue in 2016 of new primary and secondary procurement legislation, 2017 brought news in the public procurement field, mainly on the tertiary level of the legislation. Important points include:
- three instructions from the chairman of the competent authority about the application of relevant legal provisions on
- records of studies, professional ability and qualification of bidder's staff, as well as organisation, qualification and experience of staff assigned to performing the contract,
- similar experience, and
- changes to public contracts;
- new special conditions of the Yellow FIDIC contracts for public investments in the field of national transport infrastructure;
- the Delegated Regulations of the European Commission of 18 December 2017 and the corresponding Commission Communication on the thresholds applicable as of 1 January 2018.
2017 ended with an important Ordinance that amended and supplemented the laws on classic procurement, on water, energy, transport and postal services procurement, on concessions, as well as the law on remedies in these areas.
The declared purposes of this Ordinance are:
- to improve the system of public procurement and make it more flexible, in order to avoid the risks of reducing expenditure from allocated public funds, including EU funds, and subsequently the risk of delaying or postponing the implementation of large investment projects;
(ii) to avoid the risks of non-fulfilment of signed contracts following the increase of the national minimum salary;
(iii) the necessary urgent correlation of legal provisions.
In the following, we mention a few changes or supplements to the law on classic procurement.
1. New threshold
For public supply and service contracts to be awarded by local authorities and further authorities subordinated to them, the Ordinance sets a new threshold of RON 929,089. However, according to the European Commission this threshold amounts to RON 994,942.
2. Award of contracts for social and other specific services
The public procurement procedure to be applied for these contracts – according to the Ordinance – is
- either a procedure referred to in law, or
- a separate (self-established) procedure,
depending on the estimated value of the contract.
3. Framework agreements and electronic auctions
Framework agreements may also be awarded by simplified procedures, and these simplified procedures may also end in an electronic auction.
Companies may submit requests for clarification of the tender documentation within the deadline mentioned in the publication notice. Instead of the three working days to provide the answers to each request, the authorities will set one or two deadlines in the notice, by which they must clearly and completely answer all inquiries. This must be done at least 10 days (in urgent cases, five days) before the submission of bids by the bidders.
5. European Single Procurement Document (‘ESPD’, RO: ‘DUAE’)
It is clearly stated that if third parties or subcontractors are to be relied upon, they must sign their own ESPD, together with a commitment to support the bidder, respectively the subcontracting agreement.
6. Deadline for awarding the contract
Contracting authorities must award the contract within the period of validity of the bids as specified in tender documentation; the 25-day deadline from the date of bid submission, applicable so far, has been cancelled.
7. Admissible bids
A bid is admissible unless it is irregular (neconforma), unacceptable (inacceptabila) or unsuitable (neadecvata), the three terms being defined by law.
While some of the changes introduced by the Ordinance lead to the correlation of various legal provisions, others do not seem to meet the declared purposes of the Ordinance. It is, for example, questionable why provisions of the 2014 EU Directives on the threshold for local authorities are being implemented only now, for the purpose of promoting large investment projects in Romania. And does the elimination of the 25-day deadline for awarding the contract (which is not always met in practice) not contradict the original goal (to accelerate procedures) of the amendments to public procurement legislation? Finally, it will be interesting to see how the contracting authorities will set the deadlines for clarifications.