As of 1 January 2013, the Government Emergency Ordinance no. 77/2012 published in the Official Gazette, Part I, no. 827/10.12.2012 ("GEO 77/20012") amended the public procurement rules set out under Government Emergency Ordinance no. 34/2006.
As of 1 January 2013, the Government Emergency Ordinance no. 34/2006 concerning public procurement contracts and works and services concession contracts ("GEO 34/2006") was amended by GEO 77/2012. The main amendments are:
- The public procurement contract was re-qualified as an administrative con-tract (as opposed to a commercial contract); this means that the administra-tive courts will have the competency for handling complaints against already-concluded public procurement contracts. In addition, legal provisions applica-ble to administrative complaints and administrative acts/contracts will be ap-plicable to public procurement contracts.
- A new category of contracting authorities was introduced, ie regie autonoma or any national company or company controlled by any public authority or in-stitution acting at central, regional or local level or by a body of public law. As such, the obligation to organise public procurement procedures will not be limited anymore to public undertakings in the utilities sector (postal services, water, energy, transport, etc.), but also to companies controlled by any other state or local municipalities ; arguably, the more efficient use of funds (which in many instances are indirectly public funds) also at the level of such com-panies justifies the obligation to observe public procurement rules;
- For any public procurement contracts that are awarded directly (below the threshold of EUR 15,000) and have a value above EUR 5,000 (but remain be-low the threshold of EUR 15,000), the contracting authority has the obliga-tion to post in the Electronic System for Public Procurements (SEAP) a notice indicating specific details about the respective contract; arguably such notice obligation may be used as an instrument of surveillance and control in order to prevent the contracting authorities from dividing the contracts in order to fall below the EUR 15,000 threshold and by doing so being able to award di-rectly;
- Any qualification/selection criteria and any evaluation factors which are not expressly indicated also in the contract notice and in the data sheet (fisa de date) will be considered unwritten;
- Together with the public procurement documentation, the contracting au-thority will upload in SEAP (without being a public document) a declaration indicating the identification details of the persons holding decision positions (functii de decizie) in the contracting authority; the names of these persons will be indicated in the awarding documentation. Such positions are stipu-lated by GEO 77/2012 to be the top manager of the contracting authority (conducatorul autoritatii contractante), the members of the decision-making bodies of the contracting authority which are related to the awarding proce-dure, as well as any other persons in the contracting authority who may in-fluence the content of the awarding documentation and/or the awarding pro-cedure;
- The decisions of the National Council for Solving Complaints (CNSC) and the rulings of the courts in relation to public procurement procedures will be pub-lished in SEAP;
- The court of law may decide that a public procurement contract is null and void not only for the specific nullity reasons set out in GEO 34/2006, but also for any other grounds set out by law;
It remains to be seen how these amendments will be implemented in practice and how quickly the competent surveillance authorities or the contracting authorities will be able to comply with these new requirements.
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