Major amendments in the public procurement system

On February 12, 2020, the Government Emergency Ordinance no. 23/2020 for the amendment and completion of certain laws with impact over the public procurement system („GEO no. 23/2020”) was published in the Official Gazette of Romania, Part I.

GEO no. 23/2020 brings amendments concerning several laws with impact over the public procurement system, namely Law no. 98/2016, Law no. 99/2016, Law no. 100/2016 Law no. 101/2016, and GEO no. 98/2017.

Firstly, the GEO no. 20/2020 amends Law no. 98/2016 regarding public procurement (“Law no. 98/2016”). GEO no 23/2020 amends article 57 by introducing a new section (4) with the following content: The information indicated by economic operators as confidential, including technical or commercial secrets and confidential elements of the offers, must be accompanied by proof that attests their confidentiality, otherwise the provisions of section (1) are not applicable.

At the same time, following the changes promoted, the contracting authority will exclude from the awarding procedure any economic operator about whom it can prove, by any appropriate means, that has violated its obligations regarding payment of taxes, duties, or contributions to the general consolidated budget.

Furthermore, within art. 171 of Law 98/2016, two new sections were introduced, respectively section (3¹) and (3²) which specify that the contracting authority shall evaluate the measures taken by the economic operators and proved in accordance with art. 171 section (3), taking into consideration the seriousness and the particular circumstances of the felonies and deviations envisaged, and in the event that such measures are considered insufficient by the contracting authority, the latter shall send the economic operator an explanation of the reasons that led to the decision of exclusion from the awarding procedure.

Relevant amendments were implemented by setting specific deadlines within which the contracting authority executed the procedure report, which shall not exceed:

·         60 working days for the procedures provided by art. 68 section (1) letters a), b), e), g) and h);

·         20 working days for the procedures provided by art. 68 section (1) letters f) and i);

·         100 working days for the procedures provided by art. 68 section (1) letters c) and d).

The same article underwent changes through the introduction of two new sections - (4) and (5). Following the changes, sections (4) and (5) specify that by exception from section (3), in duly justified cases and with the approval of the head of the contracting authority, the deadlines may be extended only once—without exceeding the period of validity of the offer—informing the economic operators involved in the procedure within a maximum of two working days from the approval by the head of the contracting authority of the extension decision. In the case of ordering the re-evaluation of the offers, the contracting authority will remake the awarding procedure report within a deadline that cannot exceed 20 working days, from the date of communication of the decision.

The substantial amendment of the public procurement contract takes place, according to the law, when one of the following conditions is fulfilled:

a)   the amendment introduces conditions which, were they included in the initial award procedure, would have allowed the selection of candidates other than the ones initially selected, or the acceptance of another offer than the one initially accepted or would have attracted other participants in the award procedure;

b)   the amendment changes the economic balance of the public procurement contract/framework agreement in favor of the contractor in a way that was unforeseen for in the public procurement contract / initial framework agreement;

c)   the amendment considerably extends the object of the public procurement contract/framework agreement;

d)   a new contractor replaces the original contractor, in cases other than those provided in section (1) letter d).

GEO no. 23/2020 also amended Law no. 99/2016 on sectorial procurement (“Law no. 99/2016”) by introducing a new definition of legal services that now also includes the document certification and authentication services that are provided by the public notaries according to the legal provisions.

The elements regarding the information indicated by the economic operators as confidential, were also regulated in the same manner as Law no. 98/2016, previously stated.

Article 180 of Law no. 99/2016 was amended by introducing a new section (5¹) which is similar to the amendments brought by section (7¹) of article 167 of Law no. 98/2016. Article 184 of Law no. 99/2016 was amended by introducing two new sections, namely (3¹) and (3²) which are similar to the amendments brought by sections (3¹) and (3²) of article 171 of Law no. 98/2016, and article 227 section (3) was amended by introducing specific deadlines in which the contracting authority establishes the winning bid.

Law no. 100/2016 regarding works and services concessions ("Law no. 100/2016") was amended by replacing the phrase "contracting entity/ies" with the phrase "contracting authority/ies/ entity/ies" in several of its provisions.

Article 86 paragraph (2) of Law no. 100/2016 was amended by expressly specifying that for the purpose of section (1) it does not give the contracting authority/entity unlimited freedom of choice.

Two new sections were introduced within article 87, namely section (3) and (4) which provide that, in the case outlined at article 87 section (1), if the award criteria was published at the time of the launch of the concession notice, and the contracting authority/entity publishes a new concession notice, in compliance with the minimum requirements mentioned in article 54 section (1), the modification of the order of the award criteria in the situation stated in section (1) does not lead to discrimination.

Finally, through GEO no. 23/2020, Law no. 101/2016 on remedies and appeals regarding the award of public procurement contracts, sectorial contracts, and works and services concession, as well as for the organization and functioning of the National Council of Solving Complaints (“Law no. 101/2016”) underwent multiple amendments. The first amendment regarding article 3 section (1) letter a) that expressly excludes the notion of direct concession from the definition of the term “act of contracting authority” when referring to any act . . . in connection with or within an award procedure.

Article 4 section (5) was amended by introducing the term of judicial duty stamp instead of duty stamp.

Section (2) and (3) of article 16 were also amended. The amendment in section (2) consists in eliminating the phrase without those information that the economic operator specifies as confidential, classified, or protected by an intellectual property right, and the amendment from section (3) now expressly provides that the contracting authority has the obligation to communicate the appeal to the other economic operators interested/involved in the procedure, within one working day from the date of its receipt, by any means of communication provided by the law on public procurement, the law on sectorial procurement, or the law on works and services concession, as the case may be.

Article 24 section (1) is amended and provides that the term of settlement on the merits of the appeal is 15 working days from the date of receipt, under the conditions of article 18 section (2), of the public procurement file, of the sectoral acquisition or of the concession, respectively within 10 working days (instead of 5 days) in case of the incidence of an exception that prevents the on the merits of the appeal.

An important change occurred within article 50 section (2) which now provides that, within one working day of receiving the appeal, the contracting authority has the obligation to publish it in SEAP. In addition, within the same article 50 a new section was introduced, namely section (2¹) which contains specific provisions for the award procedures whose initiation is not carried out by publication in SEAP.

Article 51 section (3) has been modified by expressly stipulating that the 10-day deadline provided is a 10 working day term.

OUG 23/2020 introduces a new article 52, which states that:

(1) The appeal introduced with the competent court shall be taxed according to the provisions of article 56 section (1) and / or (2), as the case may be.

(2) The recourse made against the appeal decision shall be taxed with 50% of the tax provided in article 56 section (1) and / or (2), as the case may be.

(3) The recourses provided for in section (2) by the contracting authorities are exempted from the judicial stamp duty.

(4) The provisions of article 56 section (5) are applicable accordingly.

Article 56 was also amended by GEO no. 23/2020. Section (1) stipulates, after the amendment, that the applications submitted to the courts according to the provisions of this chapter shall be taxed with 2% of the estimated value of the contract, but not more than 100,000,000 lei, without further distinguishing between the value threshold up to and including 100,000,000 lei and over 100,000,000 lei. Section (2) stipulates that stamp duties are related to the estimated value of each disputed lot, and in the case of a procedure for awarding a framework agreement, the amount of the judicial tax refers to double the estimated value of the largest subsequent contract that is intended to be assigned based on the respective framework agreement.

Also, within article 56 two new sections were introduced, respectively section (3) and (4) which provide the following:

(3) The recourse / appeal shall be charged with 50% of the tax provided in section (1) and / or section (2), as the case may be.

(4) The recourses made by the contracting authorities are exempted from the judicial stamp duty provided for in section (1) and / or section (2).

Article 61², which provided that the appeal made under the conditions of article 49 is exempt from the judicial stamp duty is now repealed.

Finally, a new article 68¹ is introduced, which provides that non-observance of the deadlines provided by Law no. 101/2016 or of the provisions contained therein, regarding the solutions or measures that can be ordered by the court, are disciplinary violations and are sanctioned according to the law.

Another normative act that is amended by OUG no. 23/2020 is the Government Emergency Ordinance no. 98/2017 regarding the ex ante control function of the award process of public procurement agreements/framework agreements/ sectorial framework agreements/and works and concession agreements (“GEO no. 98/2017”).

GEO no. 23/2020 amends article 4 section (2) which will provide that the necessary deadlines for the National Angency for Public Procurement (“NAPP”) for carrying out the ex ante control according to the emergency ordinance (GEO no. 98/2017) and the related methodological norms regarding the issuance of the final approval permit, are not included in the deadlines provided for the drawing up of the procedure report by the contracting authorities according to Law no. 98/2016, Law no. 99/2016, and Law no. 100/2016.

Article 5 section (2) it is also amended and provides in the new form that the ex ante control exercised by NAPP according to the provisions of this emergency ordinance aims to verify compliance with the applicable legal provisions in the field of public/sectoral procurement/concessions, from the perspective of regularity and quality, based on checklists.

Furthermore, within article 12 section (1), a new letter e) was introduced which stipulates the following: the final conclusions of the evaluation commission regarding the analysis of the non-conformities found and not remedied from the according conditioned Permits, previously issued by NAPP.

Changes also occurred in article 18 section (3) letter a) and b) regarding the deadlines stipulated by them. Thus, the deadline of 10-20 working days provided in letter a) was reduced to a deadline of 10-15 working days, and the deadline of 8-15 working days from the letter b) was reduced to a term of 5-10 working days.

Finally, the contravention stipulated in article 26 section (1) letter a) regarding the violation of the provisions of article 8 was repealed.