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April 13, 2021

Gov’t approves simplifications and clarifications of public procurement laws: Direct procurement contracts without the prior publication in SEAP

On Wednesday, the Government has changed and supplemented the laws on public procurements in order to allow subsequent conclusion of the direct procurement contracts without the prior publication of the announcement in the Public Procurement Electronic System (SEAP); the lowest price criterion is removed for design and execution.

The new provisions are included in an emergency Government’s ordinance adopted by the Government on Wednesday, aiming to streamline the assignment of the public contracts under transparent conditions, thus helping to implement public investment projects in a shorter time, the Government announces.

According to the quoted source, the adopted GEO aims to correlate and clarify the provisions of the three laws, also in compliance with the European legislation – the Law no.98/2016 on the public procurements, the Law no.99/2016 on the sectorial procurements, and the Law no. 101/2016 on the remedies related to the public procurement contracts, sectorial contracts and concession contracts for works and services, as well as on the organization and functioning of the National Council for Solving Complaints, since certain provisions of these laws have been changed during their adoption process in Parliament.

“A novelty of this ordinance is the legal framework which will subsequently allow, through its detailing in the secondary legislation, the conclusion of contracts without the prior publication of the announcement and documentation in SEAP. It is related to small direct procurements made by the contracting authorities, in which case the use of the current electronic platform proved not to be efficient, but rather a useless bureaucracy” reads the Government’s press release.

The GEO clarifies the conditions and the modalities of applying the simplified procedure; it clearly states that this procedure is applied in order to assign public procurement contracts, framework agreements and contests for solutions whose estimated value is lower than the thresholds set by the law. The simplified procedure is the way to make public procurements below the thresholds imposed by the European law, by the publication only at national level and by using shorter terms and minimal requirements to fulfill the contract.

It also clarifies the exceptional situation of art. 19 of the Law no. 98/2016, so that the contracting authority can apply the simplified procedure or, as the case may be, the direct procurement for individual lots, when the conditions provided by the law are fulfilled. It mentions the right of the contracting authority to demand to the economic operators who are jointly participating to the awarding procedure to adopt or establish a certain legal form only after the winning tender has been announced and provided that this condition is established in the awarding documentation or in the participation announcement.

It also introduces the obligation of the contracting authority to require the bidder/the candidate to specify in the tender or in its participation request the identification data of the proposed subcontractors, only if they are known at the time of submitting the tender or the participation request.

A new provision establishes that the lowest cost/price criterion cannot be applied for the assignment of the public procurement contracts/framework agreements for design and execution. The legislative clarification is necessary in order to increase quality compared to the price for the works contracts which also involve the design.

Another clarification is related to the text of the law providing that the person who considers himself or herself injured may address both the National Council for Solving Complaints and the court. The provision on the running way of the deadline for settling the complaint will also be clearer; it will be expressly provided that this term is of 20 business days since the receiving of the copy of the public procurement file by the National Council for Solving Complaints, after it was sent by the contracting authority with its point of view on the complaint, in order to avoid the artificial prolongation of the deadline for settling the complaint. A unitary term of 5 business days will be applied to communicate the statement of defense by the respondent, because the 5 calendar days may also include days off, and thus the deadline is actually reduced to 3 business days.

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