New regulations in the public procurement sector

A recent Order regulates the procedure for implementing amendments to public procurement agreements. A new award procedure is unnecessary if an agreement meets each of the following conditions:
• modification becomes necessary because of circumstances that a diligent contracting authority could not have foreseen;
• modification does not affect the general nature of the agreement; and
• the value of the increased price does not exceed 50% of the total agreement value.

If these conditions are met, the authority initiating an amendment must notify the National Agency for Public Procurement (“ANAP”) of its intention and provide the requested documents. The submitted notice will be subject to a verification and a selection procedure based on the following criteria:

• the source of agreement financing: notices about agreements funded by European non-reimbursable funds will receive priority followed by those financed from budgetary funds and then private funds;
• nature of the agreement to be concluded: in the following priority order: works agreements, service agreements, and product agreements;
• estimated value of the agreement amendment – in descending order; and
• history of the contracting authority

After careful analysis of the notice and the submitted documents, ANAP will issue a reasoned opinion on how the contracting authority has demonstrated the fulfillment of the legal conditions regarding the amendment of the public procurement agreement and will prepare an activity report for each verified agreement amendment.
ANAP issued Order no. 141/2017 approving the selection methodology and the interaction way of the contracting authorities with ANAP on the amendments to the public procurement contracts and framework agreements and sectoral contracts and framework agreements under the conditions stipulated in art. 221 para. (1) let. c) of Law no. 98/2016 and art. 238 of Law no. 99/2016. Order no. 141/2017 was published in the Romanian Official Gazette, Part I, No. 492 dated June 28, 2017.

Stratulat Albulescu - Attorneys at law