The Government Emergency Ordinance no. 34/2006 on the award of public procurement contracts, public works and services concession contracts (“GEO no.34/2006”) was amended and modified by Law no.279/07.12.2011, published in the Official Gazette, Part I no. 872 from the 9th of December, 2011. The new amendments and modifications to the GEO no.34/2006 are meant to bring a contribution to the efficiency and transparence in the carrying out of the public procurement procedures inRomania.
Some of these amendments and modifications are presented hereinafter:
Application of some types of procedures
The contracting authorities are obliged to purchase directly the products/services/works whenever the value of the acquisition is up to the equivalent in ROL of EUR 15,000. In this case, the fiscal invoice would be the only proving document (conclusion of a public procurement contract is no longer requested).
- Whenever the value of the purchase (products/services/works) is over EUR 15,000, but less than the RON equivalent of EUR 125,000 (in case of products and services) and EUR 4,845,000 (in case of works), the contracting authorities are obliged to apply the offer request procedure (a simplified procedure). This obligation will not be applied in case of negotiation with or without a prior publication of a participation notice or in case of the competitive dialogue, if applicable.
- Whenever the value of the acquisition (products and services) is over EUR 125,000 or EUR 4,845,000, the contracting authorities will be obliged to apply the procedure of the open or limited public tender.
Guarantee for participation
- The contracting authorities are obliged to ask the bidders/candidates to constitute a guarantee for participation only in case of those public procurement procedures when a prior publication of a participation notice/invitation to participate is mandatory.
- The contracting authorities may retain an amount from the guarantee for participation deposited by the bidder/candidate (which will be computed according to the GEO no.34/2006’s provisions) only in case the contestation of the bidder/candidate is rejected by the National Council for Settlement of Contestations (“NCSC”) as non-grounded.
Cases of application of the negotiation without the prior publication of a participation notice
The cumulated value of the contracts to be awarded and of the additional acts for supplementary or additional works and/or services should not exceed 20% from the value of the initial contract. The legal provision permitting the increase of the percentage of 20% to the maximum 50% from the value of the initial contract, in cases well grounded, based a justifying notice, was thus eliminated.
As regarding the new works/services, similar to the works/services purchased by the awarding of the initial contract, the application of the procedure of negotiation without prior publication of a participation notice has been extended to the case when the initial contract of works/services was awarded by the offer request procedure.
Modification of the qualification and selection criteria, as well as of the evaluation factors
Any modification of the qualification and selection criteria as well as of the evaluation factors of the offers, as mentioned in the participation notice or invitation to participate or in the awarding documentation, leads to the annulment of the public procurement procedure.
Assignment in public procurement contracts
The law expressly provides that only the assignment of the receivables resulted from the public procurement contracts are permitted, while the contracting parties remain responsible for the fulfillment of their obligations, as initially provided and assumed.