| General considerations |
In order to implement infrastructure projects of national interest and investment projects proposed to be financed from the National Recovery and Resilience Plan, as well as considering the need to approve certain measures on public procurement legislation, so as to avoid delays in implementation and loss of funding, it was adopted the Emergency Ordinance no. 26/2022 amending and supplementing certain normative acts in the field of public investments (hereinafter referred to as “GEO 26/2022”), entering into force on March 21, 2022.
GEO 26/2022 amends Law 98/2016 on public procurement, Law 99/2016 on sectoral public procurement and Law 101/2016 on remedies and appeals in the award of public procurement contracts, sectoral contracts and concession contracts for works and services, amendments that we summarize below:
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| Amendments to Law no. 98/2016 and Law no. 99/2016 |
- In relation to the negotiation without prior publication of a contract notice
It is clarified and circumstantiated one of the cases in which the contracting authority shall be entitled to apply the procedure without prior publication of a contract notice for the award of public procurement contracts/framework agreements for works, products or services, namely as an absolutely necessary measure when, for reasons of extreme urgency determined by events which could not have been foreseen by the contracting authority, the deadlines for the procedures of open tender, restricted tender, competitive negotiation or for the simplified procedure cannot be met. Clearly, the cases reffered to in order to justify extreme urgency must under no circumstances be attributable to the contracting authority.
Previously, reference was made to a strictly necessary measure and to unforeseeable events in general, not necessarily that could not have been foreseen by the contracting authority.
In view of the exceptional nature of such cases, the contracting authority shall not be entitled to establish in the procurement documents the duration of the contract for a period longer than necessary to deal with the unforeseen situation which led to the application of the negotiated procedure without prior publication of a contract notice, with the exception of trans-european transport infrastructure projects, where a longer period can reasonably be established.
- Establishing clear deadlines for requesting supporting documents on the basis of the European Single Procurement Document (ESPD)
In order to expedite the completion of the assessment process, GEO 26/2022 amends the provisions on the submission of updated supporting documents demonstrating compliance with the qualification and selection criteria, in accordance with the information contained in the ESPD, in the sense of establishing a term of one (1) working day for the contracting authority from the moment of the determination of the first-placed tenderer after application of the award criteria, respectively within one (1) working day following the issue of the conformity notice (where the documentation is subject to ex-ante control) to request the tenderer declared winner to submit these updated supporting documents. The procedures that are carried out in several stages are exempted, case in which the supporting documents must be requested before the invitations for the second stage are sent.
The tenderer/applicant shall be granted a term of seven (7) working days to reply to the request for clarification, subject to the penalty of rejecting its tender as unacceptable. This term may be extended at the request of the tenderer/applicant with maximum three (3) working days.
- Payments made directly to other entities under the public procurement contract
The contracting authority shall have the possibility to make direct payments corresponding to the part(s) of the contract perfomed, for services, products or works provided, not only to subcontractors, but also to suppliers and/or to subcontractors of designated subcontractors and/or to any other economic operators, provided that this possibility has been stated in the procurement documents. Of course, it is necessary that the entities concerned have expressed their option in this respect.
- Amendment of the public procurement contract – determination of the cumulative net value of successive amendments
Where contracts/ framework agreements are amended without being organized a new award procedure, i.e. the situation when several cumulative conditions are met ((i) the amount of the adjustment shall be lower than the corresponding value thresholds provided by article 7 para. (1) of the Law; (ii) the amount of the adjustment is less than 10% of the initial public procurement contract price, in the case of public services or supply contracts, or less than 15% of the initial public procurement contract price, in the case of public works contracts; and (iii) the amendment is without prejudice to the general nature of the contract or framework agreement on the basis of which the subsequent contract in question is awarded) and several successive amendments are made, the value of such amendments shall be determined on the basis of the aggregate net value of the successive amendments, without taking into account the amendments which do not lead to an increase of the contract price and without prejudice to the general nature of the contract/framework agreement.
This clarification is opportune in the context that there are changes in contracts for which implementation reservations or other legal mechanisms can be used.
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| Amendments to Law no. 101/2016 |
- Subject matter of legal actions related to public procurement procedures
GEO 26/2022 completes the provisions on lawsuits and claims related to public procurement procedures in order to complete their scope of application also with disputes and claims arising from the termination, resolution, unilateral termination or early termination of public procurement contracts for reasons independent of the contracting authority. Such disputes shall be settled in first instance, as a matter of urgency by the civil litigation section of the court in the circumscription of which the contracting authority has its registered seat or in the circumscription in which the plaintiff has its registered office/domicile.
It is also regulated that the procedure of the presidential ordinance in the matter of suspension of the termination, resolution, unilateral termination or early termination of public procurement contracts is inadmissible, since in the case of the presidential ordinance, the action will be judged in chambers, and the contracting authority, as a defendant, is not summoned, thus not having the opportunity to submit its defence.
- Amendments concerning time limits in court actions
The time limit for submission of a claim shall be one year from the date the right for actions for damages for prejudice caused in the award procedure is born and three years from the date the right for actions for the enforcement, annulment or nullity of contracts is born, unless other limitation periods for the substantive right of action relating to the legal or contractual obligations breached are provided for by special laws.
However, the time limit for submission of a claim is 30 days from the date the right for actions arising from the termination, cancellation, unilateral termination or early termination of public procurement contracts is born, unless other limitation periods for the substantive right of action in relation to the legal or contractual obligations breached are provided for by special laws.
As an exception from the legal provisions providing for a 5-day time limit for the filing of the statement of defence, for actions arising from the termination, cancellation, unilateral termination or early termination of public procurement contracts, the new time limit for the filing of the statement of defence is 15 days from the date of communication of the claim to the defendant.
- Retention of the bond by the contracting authority
When the contracting authority definitively wins the case of the complaint submitted in the public procurement procedure, it is obliged to take the necessary steps to retain the bond lodged with the Council by the economic operator that filed the complaint, with a view to and to the extent of covering the damages caused by the delays in completing the award procedure.
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