Significant changes in public procurement. Creating procedures for the urgent resolution of public procurement disputes in Romania.

  

Due to the COVID-19 pandemic, public authorities have been under pressure to rapidly change the way they work to keep their staff and citizens safe and at the same time provide extraordinary levels of support to their communities during the crisis. For procurement staff, this has included purchasing additional goods and services such as sanitizing products, IT and food, as well as continuing to purchase the regular goods, services and works required to keep their cities functioning effectively and keep their citizens safe.

The main amendments brought by the new law, respectively the Governmental Emergency Ordinance (“GEO”) no. 114/2020 on amending and supplementing some normative acts with impact in the field of public procurement (“GEO no. 114/2020”), applicable from the date of publication in the Official Gazette no. 614 of 13 July 2020, addresses issues both with regard to the conduct of public procurement procedures and with regard to the initiation and settlement of possible disputes  which are born as a result of the public procurement procedure.

According to ANAP („The National Agency for Public Procurement”), the legislative changes operated aim at shortening the period of public procurement procedures, by adopting measures to accelerate the ex-ante control process. Once the transition to the digitization of the ex-ante control is made, the time allocated to the verification of the award documentation by ANAP is considerably reduced.

Through the new changes made we can observe, that either the legislator kept some of the amendments initially introduced by GEO no. 23/2020 (repealed following the adoption of GEO no. 114/2020) either it legislates certain aspects on which a majority practice has already been formed at court level.

The new ordinance introduced new measures to accelerate and simplify public procurement procedures and the need lies precisely because of the funding lost by Romania during the Covid period.

Below we present some of the most important changes brought by the new legislation:

  1. Modification of some procedural terms:

– the term for contesting the harmful acts of the contracting authority, in case the estimated value of the contract award procedure is lower than the value thresholds provided in art. 7 para. (1) of Law no. 98/2016, was increased to 7 days calculated starting with the day following the acknowledgment of the act of the contracting authority considered illegal; in this case, the legal waiting period for concluding the contract shall be amended accordingly, respectively it may not be less than 8 days;

– the term for solving the appeal by CNSC („The National Council for Solving Complaints”)was increased to 20 days from the date of receiving the public procurement file, in case of settlement on the merits, respectively 10 days in case of the incidence of an exception that prevents the substantive analysis of the appeal;

– the procedural terms will be calculated in calendar days, being eliminated the references to working days.

  1. With regard to stamping changes, the amendments concern the following aspects: it is clarified that the complaint filed against the decision of the CNSC is exempted from the payment of the judicial stamp duty. The provisions initially adopted by GEO no. 23/2020, the appeals filed in court will be charged with 2% of the estimated value of the public procurement contract, but not more than 100,000,000, the appeal being charged with 50% of this fee. The contracting authorities, on the other hand, remain exempt from the obligation to pay the judicial stamp duty.

III. Changes in jurisdiction to resolve cases:

– Introduce the alternative competence for resolving the processes and claims regarding the granting of compensations for the damages caused within the award procedure, as well as those regarding the annulment or nullity of the contracts, respectively the administrative and fiscal contentious section of the court corresponding to the contracting authority or corresponding headquarters / the applicant’s domicile;

– Introduce the alternative competence for solving the processes and requests deriving from the execution of the administrative contracts is introduced, respectively the civil section of the court corresponding to the headquarters of the contracting authority or corresponding to the registered office / domicile of the plaintiff.

  1. Changes regarding the recording of the bail:

– The bail may be lodged within a maximum of 5 days from the date of notification to the Council;

– The new ordinance establishes a series of new rules, so the deposit will be calculated taking into account two elements, both by reference to the value thresholds provided by primary legislation, but also depending on when the appeal is filed (before or after submission of bids).

The COVID-19 crisis has taught us that there must be a much more effective relationship between the public, commercial and social sectors in general, and in particular with regard to procurement and to move forward, public authorities should seek to synchronize with the market, much earlier in the public procurement process to enable innovation and cooperation, but also to ensure that the process contributes to achieving wider results.

In this sense, they will become more familiar with the organization of auctions according to needs, so that the market comes up with innovative solutions.

In conclusion, the amendments introduced by GEO no. 114/2020 are determined by the need to harmonize the national legislation with the European one, to increase the clarity of the legal provisions or to speed up the settlement of appeals.

 

Attorney at law Alexandra Florescu

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