The Romanian public and sectoral procurement legislation has recently undergone several important changes aimed at clarifying certain provisions that used to be open to interpretation and/or have given rise to disputes in practice. The legislative novelties were introduced by the recently adopted Government Decision No. 336/19.04.2023, which amends the methodological rules for the application of the primary legislation governing these areas.
The main amendments to the methodological rules for the application of Law No. 98/2016 on public procurement ("Methodological Rules") are as follows:
- Contract value. The new rules introduce an
obligation for contracting authorities to calculate the estimated
value of a tender based on the total value to be paid, without VAT,
considering any possible forms of options and contract extensions
explicitly provided for in the procurement documents. The contract
notice must now contain an estimate of the maximum value of the
framework agreement.
- Choice of the type of award procedure. How
contracting authorities choose the award procedure has been
clarified. Thus, the legislative framework is made more supple by
partially repealing the earlier provisions that established the
manner of choosing the award procedure based on several prescribed
considerations; in the case of public works or service contracts,
for the implementation of new public investment objectives or
intervention works on existing ones.
Another considerable novelty is the clarification of the inapplicability of the negotiation without prior publication following the rescission, resolution, unilateral termination or early termination of public procurement contracts for trans-European transport infrastructure projects. Thus, the government indirectly establishes that these causes do not meet the conditions for applying the negotiation without prior publication procedure.
- Procurement of products with an environmental
impact. By introducing a new annex to the Methodological
Rules, the categories of products with life-cycle environmental
impact are defined (e.g. food, textiles, copy paper, furniture,
computers, imaging equipment, electrical and electronic equipment
used in the healthcare sector, etc.). For the procurement of these
products, the "best quality-price ratio" or "best
quality-cost ratio" criterion will be used, with a maximum
weighting of 40 % allocated to the "price" factor. It
will be interesting to see what effect this change will have in
practice, since products with an environmental impact also now
include everyday products, such as necessities like food, copy
paper and textiles.
- Guarantees. It is expressly stated that
contracting authorities are not entitled to require or prohibit the
submission of a guarantee instrument issued by a particular bank,
non-bank financial institution or insurance company, or to limit
the possibility of presenting guarantee instruments issued only by
some of these institutions or insurance companies.
- Ascertaining documents. The provisions on
ascertaining documents have also been amended. It has now become
mandatory to publish them in the Electronic Public Procurement
System ("EPPS") by the deadline for their issuance,
except for so-called "negative" documents, which are to
be published in the EPPS within 60 days from the date of issuance
(unless a court decision has suspended their effects).Moreover,
contracting authorities are now entitled (rather than obliged) to
issue documents during the execution of the contract, every 90 days
after the contract has been signed, which will at least record the
status of the contract and, if applicable, any delays or
deficiencies in the implementation of the contract, as well as any
damages attributable to the contractor.
- Other new obligations for contracting
authorities. The basis for extending the deadline for
preparing tenders has been changed, so that it will now be extended
even if the tender documentation is modified, and not only in the
case of the technical specifications as before, insofar as the
modifications will still require additional time for the potential
bidder to react.
Another novelty is that contracting authorities are now obliged to send a copy of the minutes of the opening of tenders to all economic operators participating in the tender procedure, whether they were present at the tender opening session or not.
Of practical importance is also the elimination of the minimum deadline of one working day to reply to requests for clarification submitted by evaluation committees.
Another welcome change is that it was made compulsory for contracting authorities to publish the date of completion/termination of the contract on the EPPS, even if no express deadline for publication is established in this regard.
We expect that the new legislative amendments to the Methodological Rules will lead to several significant changes to how tender procedures are conducted in Romania.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
