The Romanian National Regulatory and Monitoring Authority for Public Procurement (“ANRMAP”) published a draft enactment designed to amend the Government Decision no. 925 of 2006 (“GD no. 925”) approving the Methodological Norms of the Provisions of Government Emergency Ordinance no. 34 of 2006 regarding the Award of Public Procurement Contracts (“GEO no. 34/2006”). The amendment is designed to resolve some of the practical difficulties encountered by the authorities involved in public procurement proceedings as well as to align certain inconsistencies between GD no. 925 and the main legal framework represented by GEO no. 34/2006.
One of the main issues addressed by the proposed draft is the criteria for determining in which cases the requirements for similar experience of the participants are disproportionate, affecting competition between the participants.
For example, a requirement for a candidate to prove that it has worked on a previous assignment, the value which of exceeds the value of the current public procurement project by at least 50% (in the case of goods/works and 70% in the case of services), would be deemed to be disproportionate. On the other hand, certain requirements would also be deemed disproportionate where the necessary experience is to be proven by a threshold of 10% or lower than the estimated value/quantity of the current assignment. The draft also prevents contracting authorities from requesting participants to present a sole contract demonstrating their expertise in all activities required by the contract currently under public procurement, in order to demonstrate previous experience.
Moreover, authorities organizing the public procurement procedure may no longer require participants to observe certain levels of “solvency” and “current liquidity ratio”, which are the relevant financial indicators previously used by public procurement authorities in this field.
Another important issue addressed by the draft is the explicit provision allowing participants to benefit from their subcontractors’ authorizations or certificates. However, the use of a subcontractor, who possesses the necessary authorization/certificate, as part of the contracting team is only allowed if such subcontractor will fulfill all activities under the contract for which the authorizations/certificates were required. Currently, the practice of the authorities is inconsistent in this respect.
While the contracting authorities are already required to draft an annual procurement plan, the plan is currently not a public document. For the purposes of increasing transparency and allowing participants to better plan their participation in future procurement procedures, the contracting authorities will be required under GD no. 925 to publish such a plan on the existing electronic public procurement system (SEAP).
This draft enactment is deemed to resolve several practical issues encountered both by the participants and contracting authorities. However, the draft is currently under public debate and the final product and its effective date remain unclear at this moment.