On 30 August 2021, the Government Ordinance no. 3/2021 for the amendment and completion of certain legal enactments in the field of public procurement, published in the Official Gazette of Romania, Part I, no. 821/27 August 2021, entered into force.
The amendments brought by the Government Ordinance no. 3/2021 are aimed primarily at shortening the duration of award procedures and they include, inter alia:
I. Amendmends concerning litigations in the field of public procurement:
- the obligation of the contracting authority to sign the contract with the successful tenderer after the National Council for the Solving of Complaints (“NCSC”) / the court of first instance renders a decision upholding the result of the procurement procedure, regardless as to whether the decision of the CNSC / of the court of first instance has been appealed and the case has not been solved definitively (nevertheless, the 11 / 8 day waiting period before the actual signing of the contract, which is calculated starting with the day that follows the transmission by the contracting authority to all interested tenderers / candidates of its decision to award the contract, remains applicable); moreover, the legislation now provides that the decision rendered by the court of first instance is enforceable and its execution cannot be suspended;
- when the decisions of the NCSC are challenged in front of the court of appeals, no new evidence can be submitted to the court; therefore, the economic operator will have to be extremely diligent and submit all the means of proof that it intends to use from the beginning of the legal proceedings;
- in the case of complaints filed after the deadline for the submission of the requests for participation / of the offers / of the projects, with respect to contracts the value of which exceeds the thresholds imposing the publication of a contract notice in the Official Journal of the European Union, the cap on the amount of the bail has been increased from 880.000 RON to 2.000.000 RON.II
II. Amendments concerning the rules applicable to award proceedings:
- the modification of the notion of subcontractor within (i) Law no. 98/2016 on public procurement (“Law no. 98/2016”), (ii) Law no. 99/2016 on sectoral procurement (“Law no. 99/2016”) and (iii) Law no. 100/2016 on works concessions and service concessions (“Law no. 100/2016”), as follows: any economic operator that is not a party in a public procurement contract, in a sectoral procurement contract or, as the case may be, in a concession contract and which carries out certain parts or elements of the works / services, being responsible towards the main contractor for the organization and development of all the necessary stages for this purpose. The provision of a machinery or the supply of materials / goods under such contracts is not considered subcontracting within the meaning of these laws;
- the deadline for the publication by the contracting authority / entity of the decision to cancel the award procedure of the public procurement / sectoral procurement / concession contract or of the framework agreement, accompanied by the justification for the cancellation of the award procedure, through SEAP, has been shortened from 3 days to one working day as of the adoption of the annulment decision;
- the repeal of the restriction placed on the contracting authority by Law no. 98/2016 and Law no. 99/2016 according to which, if the contracting authority decided to apply for qualification and selection criteria in a simplified procedure, it could only request requirements regarding: (a) grounds for exclusion, (b) ability to pursue a professional activity or (c) similar experience;
- the removal of the obligation of the economic operator declared as winner in a procedure to present tax certificates for all secondary offices / work points; this obligation has been replaced by the submission of an affidavit stating – in respect of secondary offices / places of work – that the economic operator has not breached its obligations to pay taxes or social security contributions without any additional documents;
- the reduction of the duration of the entire public procurement process through a series of measures such as: the reduction of the maximum extension period for the preparation of the procedure report or the interim report (from 80 days to 30, 15 or 50 working days, depending on the type of procedure), the reduction of the deadline for the publication of the decision to cancel the procedure (from 3 days to 1 working day as of the adoption of the decision) and, respectively, eliminating the possibility of extending the deadline for submitting documents in support of the DUAE, in the case of the simplified procedure.