We are continuing the presentation, in brief, of some of the new amendments and modifications to the GEO no.34 from 2006 on the award of public procurement contracts, public works and services concession contracts, as approved through the Law no.279/07.12.2011, published in the Official Gazette, Part I no. 872 from the 9th of December, 2011.
Cancelling the public procurement procedure
The contracting authority has no longer the right, but the obligation to cancel the public procurement procedure in the following three cases:
(i) only unacceptable or/and nonconforming offers were submitted; (ii) no offers or only offers which could not be compared due to their non-uniform way of approaching the technical or/and financial solutions were submitted; (iii) if serious deviations from the legal provisions affect the awarding procedure or the conclusion of the contract is impossible.
According to the law, ‘serious deviations’ means the modification of the qualification and selection criteria, awarding criteria or evaluation factors which were provided in the participation notice/invitation, as well as any errors or omissions ascertained during the analyze, evaluation and/or finalization of the awarding procedure, all this causing the impossibility of taking any coercive measure in accordance with the principles that govern the public procurement.
The law expressly states the obligation of the contracting authority to cancel an awarding procedure on the basis of a court decision or a decision issued in this respect by NCSC.
Products originating from non EU countries
For the first time, the contracting authorities have the possibility to reject those offers from the product-related public procurement procedures in which the proportion of products originating from non-EU countries exceeds the 50% from the total value of the offered products, provided that the European Union hadn’t previously concluded any multilaterally or bilaterally framework agreement in order to ensure the access of the EU entities to the market of those non-EU countries.
NCSC cannot suspend anymore the solving of the contestations
The law expressly provides that NCSC (the National Council for Settlement of Contestations) has to solve the contestations on their substance, no matter if other litigations related to the same public procurement procedure are pending in the courts.
This express provision does not allow to the NCSC to suspend the solving of the contestations anymore, up to the date the court would give a decision in cases related to the same public procurement procedure.
A positive effect of the above could be the speeding up of the process of solving the contestations (the term for solving the contestation is 20 days from the date of receipt of the public procurement file from the contracting authority and 10 days in case of an exception impeding the analyzing on substance of the contestation, with exceptional prolongation one time only, for another 10 days). On the other side, this could lead to such a case when a solution given by the NCSC could be in contradiction with a solution given by the court, in the same public procurement procedure, a fact which may create confusion in the application of the law and nevertheless, may be an obstacle in application of the law. Further amendments to the law are expected in order to solve this issue in the future.
Other amendments and modifications refer to:
- Public-public partnership
- Definition of the contracting authority
- Exceptions from the application of GEO 34/2006
- Checking of the awarding documentation by the National Agency for Regulation and Monitoring of the Public Procurements (Agentia Nationala pentru Reglementarea `si Monitorizarea Achizitiilor Publice – “ANRMAP”)
- Publication of the awarding documentation by the Electronic System for Public Procurement (Sistemul Electronic de Achizitii Publice – “SEAP”)
- Rules of participation to the awarding procedure
- Qualification and selection criteria
- Specific rules for awarding the sector contracts
- Solving the contestations by NCSC
- Solving the litigations by court
- Offenses and sanctions