The Romanian public and sectoral procurement legislation has recently undergone several important changes aimed at clarifying certain provisions that used to be open to interpretation and/or have given rise to disputes in practice.
The legislative novelties were introduced by the recently adopted Government Decision No. 336/19.04.2023, which amends the methodological rules for the application of the primary legislation governing these areas.
The main amendments to the methodological rules for the application of Law No. 98/2016 on public procurement ("Methodological Rules") are as follows:
Contract value. The new rules introduce an obligation for contracting authorities to calculate the estimated value of a tender based on the total value to be paid, without VAT, considering any possible forms of options and contract extensions explicitly provided for in the procurement documents. The contract notice must now contain an estimate of the maximum value of the framework agreement.
Choice of the type of award procedure. How contracting authorities choose the award procedure has been clarified. Thus, the legislative framework is made more supple by partially repealing the earlier provisions that established the manner of choosing the award procedure based on several prescribed considerations; in the case of public works or service contracts, for the implementation of new public investment objectives or intervention works on existing ones.
Another considerable novelty is the clarification of the inapplicability of the negotiation without prior publication following the rescission, resolution, unilateral termination or early termination of public procurement contracts for trans-European transport infrastructure projects. Thus, the government indirectly establishes that these causes do not meet the conditions for applying the negotiation without prior publication procedure.
Procurement of products with an environmental impact. By introducing a new annex to the Methodological Rules, the categories of products with life-cycle environmental impact are defined (e.g. food, textiles, copy paper, furniture, computers, imaging equipment, electrical and electronic equipment used in the healthcare sector, etc.). For the procurement of these products, the "best quality-price ratio" or "best quality-cost ratio" criterion will be used, with a maximum weighting of 40 % allocated to the "price" factor. It will be interesting to see what effect this change will have in practice, since products with an environmental impact also now include everyday products, such as necessities like food, copy paper and textiles.
Guarantees. It is expressly stated that contracting authorities are not entitled to require or prohibit the submission of a guarantee instrument issued by a particular bank, non-bank financial institution or insurance company, or to limit the possibility of presenting guarantee instruments issued only by some of these institutions or insurance companies.
Ascertaining documents. The provisions on ascertaining documents have also been amended. It has now become mandatory to publish them in the Electronic Public Procurement System ("EPPS") by the deadline for their issuance, except for so-called "negative" documents, which are to be published in the EPPS within 60 days from the date of issuance (unless a court decision has suspended their effects).Moreover, contracting authorities are now entitled (rather than obliged) to issue documents during the execution of the contract, every 90 days after the contract has been signed, which will at least record the status of the contract and, if applicable, any delays or deficiencies in the implementation of the contract, as well as any damages attributable to the contractor.
Other new obligations for contracting authorities. The basis for extending the deadline for preparing tenders has been changed, so that it will now be extended even if the tender documentation is modified, and not only in the case of the technical specifications as before, insofar as the modifications will still require additional time for the potential bidder to react.
Another novelty is that contracting authorities are now obliged to send a copy of the minutes of the opening of tenders to all economic operators participating in the tender procedure, whether they were present at the tender opening session or not.
Of practical importance is also the elimination of the minimum deadline of one working day to reply to requests for clarification submitted by evaluation committees.
Another welcome change is that it was made compulsory for contracting authorities to publish the date of completion/termination of the contract on the EPPS, even if no express deadline for publication is established in this regard.
We expect that the new legislative amendments to the Methodological Rules will lead to several significant changes to how tender procedures are conducted in Romania.
By Mihai Băicoianu, Attorney at Law, Schoenherr