Changes made to post award controls performed by the National Agency for Public Procurement

National Agency for Public Procurement (“NAPP”) adopted standards that establish the rules for the post-award controls over the public procurement contracts and framework agreements, sectorial contracts and framework agreements, and concession contracts for works and services.

The post-award controls adopted by NAPP refer to the way covered contracts are assigned by the public authorities after receiving referrals from persons, businesses, authorities, or officials.

Referrals to NAPP can:

(a)       come from criminal investigation bodies or courts;

(b)       come from managing authorities, implementing bodies, and other institutions involved in the management and verification programs funded by the EU or based on protocols adopted by these authorities;

(c)        follow protocols established by other institutions that are qualified to set standards;

(d)       come from other public institutions with the appropriate qualifications;

(e)        be started non officially;

(f)        follow a scenario in a control plan adopted by NAPP;

(g)       come from public institutions or entities empowered to issue a public procurement;

(h)       involve non-compliance by the public party or beneficiary in a public procurement contract;

(i)        come from persons (natural or legal) based on the law governing the resolution of petitions.

Under the new enactment, subject to the post-award control by the NAPP, are the only public procurement procedures that are complete at the conclusion of a covered contract.

Public procurement contracts and framework agreements are entered into between one or more economic operators and one or more public authorities to construct works, supply goods, or provide services after an auction organized by the government agency or adopted without an auction if the required conditions apply.

Sectorial contracts and framework agreements are public procurement contracts entered into to provide for either the design or demolition of facilities.

Works concession contracts and service concession contracts allow public authorities to delegate the construction of facilities or provide services to economic operators, and the consideration is the exclusive right to exploit the works performed or the services rendered or the right comes together with the right to receive a payment.

Also, NAPP may perform post-award controls in the public procurement field by:

(i) analyzing and checking the public procurement procedures conducted by the public authorities;

(ii) checking the issues raised in a referral in public procurement, sectoral works concessions, service concessions, and green public procurements;

(iii) checking whether the parties fulfilled their obligations according to the directions provided by the National Council for Solving Complaints if the object of referral applies;

(iv) establishing the facts by which the legal provisions in the field of public procurement, sectoral, concession, works, or services are violated or ignored;

(v) sanctioning violations of the legal provisions in public / sectoral procurement / concessions of works and service concessions / green public procurement to the extent that they constitute contraventions under the applicable law;

(vi) drafting the report or the control note.

The report of control note might include either a sanction for the violation found by NAPP’s control team, or proposals, different than sanctions.

The post control exercised by NAPP is performed by the control team assigned based on a control plan and consists of the following phases:

(a)       communicating to the public authorities or beneficiaries of the public procurement agreements of a notice on the control performed;

(b)       performing the ex-post control;

(c)        concluding the minute on the finding and contravention sanctions, if any;

(d)       concluding the control report or memorandum, if any;

(e)        communicating to the public authorities the end of the ex-post control;

(f)        communicating the conclusions after performing the control to the complainant.

NAPP adopted the methodology through an Order that was published in the Official Gazette on 14 March and became effective on 16 April 2018.

Stratulat Albulescu - Attorneys at law