Changes to Public Procurement legislation favor local authorities, reduce tender restrictions, and make other significant changes

A major change in public procurement legislation allows local authorities such as the town halls, local councils, and local authorities under their authority to acquire goods and services with an estimated value (without VAT) of less than 929.089 lei (approx.199.315, 44 Euros) without publishing a participation announcement in the Official Journal of the European Union. Before the amendments brought to the Public Procurement Law, the local authorities were not obliged to publish in the Official Journal of the European Union the participation announcements to acquire goods and services with an estimated value (without VAT) of less than 600.129 lei (approx. 129.307 Euros).

Another change is that the Public Procurement Law is less strict with the bidders, so the contracting authority require the tenderer (candidate) to specify in the tender or in the request to participate the identification data of the proposed subcontractors only if the subcontractors are known at the time of the submission of the tender or the request to participate. Before the amendments brought to the Public Procurement Law, the tenderer or candidate was obliged to have subcontractors for the parts of the contract the tenderer or candidate was not able to fulfill and was also obliged to disclosure in the tender or in the request to participate the identification data of the proposed subcontractors and the subcontractors weres obliged to declare and to prove that they obey the same laws and have the same obligations as the tenderer or candidate. Unlike the situation before the changes, the public authority is not obliged anymore to publish in the Electronic Procurement System the tenderer’s (candidate’s) proposed subcontractors’ or third parties’ identification data five days before expiring the deadline for submitting requests to participate or make a tender.

Through the participation announcement, the public authorities have the right to establish and limit to only one or two deadlines in which they will respond and clarify to any interested economic operator’s inqueries or demands for additional information about the awarding documentation. Before the amendments, the interested public authorities were allowed to ask clarifications from the tenderers every time whenever the situation required it.

According to the new legislative amendments, if the bid offered by a bidder exceeds the estimated value of the public acquisition contract, then the bid will be rejected as unacceptable and if the price offered by the tenderer or candidate is considered by the public authority unusually low, then the tender will be considered as not meeting the conditions set in the awarding documentation and will be rejected accordingly. Before the amendments, it was at the choice of the public authority the decision to reject a bid if the price was considered unusually law.
The procedure to appeal the contracting authority’s harmful acts was also amended so that any injured party has the right to appeal either in front of the National Council for Solving Complaints or either directly in front of the courts. The choice of the authority to resolve the dispute belongs to the complainant. The competent court is the tribunal in whose jurisdiction is located the headquarter of the contracting public authority. If there is a conflict of jurisdiction between the National Council for Solving Complaints and tribunal, the court has the competence to solve the conflict. While the appeal against the contracting authority’s harmful acts is tax free in front of the National Council for Solving Complaints, the appeal against the contracting authority’s harmful acts filed in front of the tribunal is taxed with 450 lei (approx. 96 Euros).

Before the the amendments brought to the Public Procurement Procedural Law, the National Council for Solving Complaints had the exclusive competence to resolve appeals against the contracting authority’s harmful acts.

The non-unitary practice in the matter of establishing the court fee for the complaint filed against the solutions given by the National Council for Solving Complaints has been clarified, and the court fee is a fixed amount is of 225 lei ( approx. 48 Euros). Before the changes, some appeal courts were fixing the court fee at the value of 225 lei ( approx. 48 Euros) while other courts were calculing it at the value of the public procurement contract that was to be concluded.

The Romanian Guvernment amended through the Emergency Ordinance no. 107/2017 published in the Oficial Gazette no. 1022 dated on December 22, .2017 the public procurement legislation and the chances are in force since December 22, 2017.

Stratulat Albulescu - Attorneys at law