Amendments of the public procurement system

On 12.02.2020 the Emergency Ordinance no. 23/2020 for the amendment and completion of some normative acts with an impact on the public procurement system ("GEO 23/2020") was published in the Official Gazette[1]. The legislative amendments concern several normative acts in the field of public procurement, aiming, inter alia, at adopting urgent measures to simplify public procurement procedures and at the same time to initiate the first steps towards their digital transformation. Among the amendments introduced, there are the following: >> In order to be confidential, the information provided by the economic operators within the offers, including technical or commercial secrets, must be accompanied by the proof that confers their confidentiality. Otherwise, the contracting authority may disclose such information. >>Mandatory deadlines are set for the evaluation of the offers by the evaluation commissions between 20 and 100 working days, depending on the public procurement procedure. >>Also, if as a result of solving the complaint, the re-evaluation of the bids is ordered, the deadline for redoing the report of the award procedure may not exceed 20 working days from the date of communication of the decision >>In the matter of remedies, substantial amendments are made regarding terms and stamp duties. So:

●  The deadlines for solving the complaints by the National Council for Settlement of Appeals ("CNSC") are extended. Thus, CNSC resolves the complaint within 15 working days from the date of receipt of the file of public procurement, sectoral acquisition or concession, respectively within 10 working days in the case of the incidence of an exception that prevents the analysis of the complaint in substance.

● The bail for the resolution of the complaint by CNSC, which until now had to be constituted before its initiation, can now be constituted within 3 working days from the date of the notification of CNSC.

● The stamp duty is introduced for the complaints submitted with the courts, replacing the bail, which is no longer mandatory in this case. The stamp duty is 2% of the estimated value of the contract, but not more than RON 100,000,000.

● Also, the bail and the stamp duty related to the complaints regarding the framework agreements are modified. Thus, in the case of a procedure for awarding the framework agreement, the amount of the bail and the stamp duty refers to double the estimated value of the largest subsequent contract that is intended to be awarded on the basis of the respective framework agreement.

● Another amendment made by GEO 23/2020 is on the value of the stamp duty regarding the second appeal/ appeal, being 50% of the values mentioned in the previous points.

● The bail is not refunded to the one who submitted it to the extent that the contracting authority proves that it has filed a claim with the court for the payment of the compensation due until the 30-day deadline from the date the decision is final.

>>Last but not least, it broadens the scope of the Government Emergency Ordinance 114/2011 on the award of certain public procurement contracts in the fields of defence and security, including critical IT infrastructure of national interest, this being defined as the IT infrastructure essential for maintaining the functions vital to society, health, safety, security, social or economic well-being of individuals and whose disruption or destruction would have a significant impact at national level as a result of the inability to maintain those functions, respectively government cloud infrastructures and their associated infrastructures. By transitional measures it is established that the public procurement procedures, in progress at the date of entry into force of GEO 23/2020, as well as the appeals initiated before this date, are not affected by these legislative amendments, these being subject to the legal provisions valid at the date their initiation.

 

[1] Official Gazette of Romania, Part I, no. 160 dated 12.02.2020. The article can be downloaded in PDF format right from this link.