On 4 June 2018, the Romanian Official Gazette published Government Emergency Ordinance no. 45/2018 ("GEO 45/2018") bringing a series of changes with regard to the current public procurement regulation.
Among the major amendments brought to the public procurement legislation there are certain significant changes made to the provisions regarding the conduct of disputes in this area.
The explanatory memorandum issued by the Romanian Government states that such changes were implemented in order to reduce the number of complaints initiated by the participants to public procurement procedures, which may hinder the execution of the contract.
The restructuring of challenge proceedings
The Romanian Government simplified the challenge procedure by removing the initial preliminary notification that was sent to the contracting authority. Hence, the National Council for Solving Complaints ("NCSC") and the national courts will be able to issue decisions settling complaints against deeds issued in public procurement procedures more quickly.
Furthermore, GEO 45/2018 brings changes with regard to the experience of members of the NCSC, namely that at least one of those solving a complaint shall have at least nine (9) years' experience in the legal field.
New conditions for submitting complaints
In order to reduce the number of complaints initiated by participants to public procurement procedures, GEO 45/2018 established several obligations for claimants, namely:
i.to pay a guarantee for any complaint (which can reach up to EUR 195,000), including those submitted directly to the competent court; and
ii.an increase in the stamp fees.
With regard to the amount of the guarantee, the new regulation states that it must be 2% of the estimated value of the contract to be awarded (for ongoing proceedings) or of the awarded contract`s value.
The 2% of the estimated value of the framework agreement will be established based upon the value of the highest subsequent value.
An additional stamp fee shall be paid for disputes involving a damage claim or disputes resulting from the performance, annulment or termination of public procurement contracts, including public works contracts based on FIDIC Conditions of Contract.
The stamp fees were increased significantly, to 2% of the estimated value of the contract that surpasses RON 100,000,000 or 1% if the contract`s value is under such amount.
Time limits for claims submitted to the court
The previous public procurement regulation was not in accordance with administrative law; which
provided for a six (6) months period for claims regarding public procurement contracts.
To prevent misinterpretations the GEO 45/2018 provides:
- a 1-year limitation period for claims for damages caused by public awarding proceedings; and
- a 3-year limitation period for claims resulted from the performance, annulment or termination of public procurement contracts,
which will run in accordance with article 7 (6) of Law no. 554/2004 on administrative law.
The changes are applicable to public procurement proceedings and challenges that started after the entry into force of GEO 45/2018, respectively after 4 June 2018.