Public Procurement procedures: important legal changes

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by Loredana Van de Waart

The legislative package governing public procurement has recently undergone new changes, following the publication of Government Emergency Ordinance (OUG) no. 45/2018 in Official Journal no. 459 as from 4 June 2018. These amendments attempt to resolve, on one hand, important aspects that have posed problems for contractors and contracting authorities and, on the other hand, to harmonize the local legislation with certain European documents in the field.

Please find below a brief presentation of the most important changes brought by OUG no. 45/2018:

Change of the Thresholds For the Award of Public Procurement Contracts

The Ordinance changes all the thresholds provided by the public procurement laws, thresholds above which the publication of a contract notice/award notice in the EU Official Journal is mandatory. The purpose of these amendments is to bring the Romanian legal provisions in line with the European Regulations regarding the thresholds applicable in public procurement procedures, in force and applicable in Romania from 1 January 2018.

The thresholds for direct acquisitions of products and services and simplified procedures were also adjusted.

Award Criteria

One important change concerns the use of the lowest price criterion. Thus, following the entry into force of the Ordinance, the contracting authority may use the lowest price criterion only if it purchases goods, services or works whose estimated value does not exceed the thresholds.

Amendment of the Contract by Substitution of a New Contractor, Without Organizing a New Procedure

The Ordinance introduces the possibility of  replacing the contractor without organizing a new procedure if the contractor becomes subject to insolvency proceedings and if it is acquired (in addition to the situations already stipulated by the law – reorganization, merger and spin off); of course, the new contractor  has to comply with the initial eligibility and selection criteria. Moreover, this change must not lead to other substantial changes in the contract and its objective must not be to avoid the application of the award procedures provided for by law.

Elimination of the Prior Notice

Until the entry into force of the Ordinance, the economic operator  affected by an act of the contracting authority was obliged, pursuant Law no. 101/2016, to first file a prior notice with the contracting authority. Now, the  affected economic operator may submit its complaint directly to the National Council for the Settlement of Complaints (CNSC)/Court.

The contracting authority will have a 3-days deadline to take the measures it deems necessary.

The Deposit for the Complaint

In order to reduce the number of complaints, the Ordinance introduced again the obligation of the economic operator to submit a deposit if it  files a complaint with CNSC/Court. The deposit is capped at 35,000 lei/88,000 lei/ 220,000 lei/ 880,000 lei (about 7,500 euros/18,800 euros/ 47,200 euros/188,800 euros) depending on  the value of the contract.