The current public acquisitions regime is regulated by Emergency Ordinance no. 60/April 25, 2001, published in Official Gazette no. 241 of May 11, 2001.
The Emergency Ordinance establishes the principles, the general framework and the procedures for granting the public acquisition contract, as well as the methods for contesting the act or decision of the contracting authority, which applies one of the procedures for granting the public acquisition contract.
The main principles:
free competition for any supplier, irrespective of nationality. The foreign bidders benefit of the same rights as the Romanian bidders in their respective countries;
efficiency in use of public funds (i.e. use of competition and of economic criteria);
transparency;
equal treatment for any supplier;
confidentiality (i.e. the guarantee of protecting the commercial secret and the intellectual property of the bidder).
Exception: The contracting authorities have the right to use direct acquisition in case of buying products or services with a value (without VAT), which does not exceed 1,500 Euro per year.
Main procedures for granting the public acquisition contract:
• open tender;
• restricted tender;
• negotiation, which can be:
competitive negotiation;
with only one source;
request for offers. This method can be used only when the value of the contract is below 40,000 Euro for supply of goods or provision of services and below 100,000 Euro for works contracts.
The usual procedures are these of open or restricted tender.
In case of activities related to land melioration, urban planning or architectural works a contest of solutions can be organized.
The contracting authority has no right to divide the public acquisition contract into smaller contracts in order to avoid the open or restricted tender procedures.
The contracting authority has to announce in the Official Gazette, Part VI - Public Acquisitions, all contracts with an estimate value (without VAT) equal or higher than 750,000 Euro, with all necessary details.
The contracting authority has to announce in the Official Gazette, Part VI - Public Acquisitions, the result of granting a public acquisition contract no later than 30 days from the close of the contract.
A bidder is not eligible in case:
• it is in a state of bankruptcy or liquidation;
• it is involved in a legal procedure leading to the above situations;
• it failed to fulfill its legal fiscal obligations to the state;
• it provides false information;
• it is responsible for a severe professional mistake, or it failed to fulfill its obligations within the public acquisition contract.
Public acquisitions by means of electronic bids
Public Acquisition Electronic System:
• is regulated by the Law 468/2002 for the approval of the Ordinance 20/2002;
• is operated by a public authority in order to facilitate the transparency, correctness, and efficiency in the public acquisition domain;
• it is available on Internet at the address www.e-licitatie.ro.
The operator of the Electronic System is the General Inspectorate for Communications and Information Technology, public institution with legal personality in the subordination of the Ministry of Communications and Information Technology, integrally financed through extra-budgetary revenues.
The procedure of electronic bid has the following stages:
a) Participation announcements are published;
b) The candidates are registered;
c) The candidates are selected;
d) The documents for the elaboration and submission of the offer are displayed;
e) The offers are evaluated;
f) The evaluation result is announced;
g) The contract is closed by the two parties;
h) The announcement for the awarded contract is published.
The announcement of intent will be published separately for products, works and services, within at most 30 days from the date of the approval of the contracting authority's budget and must include at least all the public acquisition contracts anticipated to be awarded by the end of the budgetary year and the approximate value of which, without VAT, is equal or higher than the equivalent in ROL of 100,000 EURO. For contracts with estimated value, without VAT, lower than the equivalent in ROL of 100,000 EURO, the publishing of the announcement of intent is optional.
In order to ensure an adequate evidence, the Electronic System operator has to draft, in an electronic version, the file of the electronic bid procedure. The Electronic System operator will establish the content of the public acquisition file and will guarantee secure conditions for the storage of the necessary records for each on-line stage of the electronic bid procedure..
The file of the electronic bid procedure is stored by the Electronic System operator as long as the public acquisition contract produces effects, but not for less than 5 years from the date of the contract has been closed.
On request, the file of the electronic bid procedure will be made available for consultation for any interested public body., No information will be disclosed, if its disclosure is against the law, impedes the application of the law, harms the public interest, affects the legal commercial interest of the parties, or affects free competition, but without limiting the rights to take possession of documents which may serve for proving frauds, misdemeanors, or crimes , according to the law for the empowered bodies,.
Legal Framework
Government Emergency Ordinance No.60/April 25, 2001 concerning current public acquisitions regime.
Law 468/2002 for the approval of the Government Ordinance No. 20/January 24, 2002 concerning Public acquisitions by means of electronic bids.
Government Decision No. 182/February 28, concerning the list of contracting authorities biding to apply the Government Ordinance No. 20 provisions regarding public acquisitions by means of electronic bids and the list of products to be bought using electronic bids. (completed with all the Government Decisions that followed in 2002)
Government Ordinance to modify and complete the Government Ordinance no. 20/2002 concerning Public acquisitions by means of electronic bids
Ordinance No. 75/2004The Government Ordinance no. 60/2001 regarding the public acquisition is amended.
Law No. 381/2006Law No. 381/2006 approves Emergency Ordinance No. 36/2006 for the modification and completion of Emergency Ordinance No.189/2002 regarding the offset operations related to the procurement agreements for defence, public order and national safety needs.
Thus, according to Law No. 381/2006, the direct offset operations can be performed by investments consisting in the participation in the setting up and increase of the stock capital of a company, Romanian legal entity, by obtaining, including in the framework of a privatization process, from a Romanian legal or natural entity, stocks with a company, Romanian legal entity, that manufactures and supplies, as main object of activity, products and services related to the object of the procurement agreement and the integration in the manufacturing process of the respective products and services, provided that the participation level should not be lower than the quote which ensures at least the position of important stockholder.
The indirect offset operations can be performed by investments consisting in the participation in the setting up and increase of the stock capital of a company, Romanian legal entity, by obtaining, including in the framework of a privatization process, from a Romanian legal or natural entity, of stocks with a company, Romanian legal entity, provided that the participation level should not be lower than the quote which ensures at least the position of important stockholder.
According to the new modifications, the contracting party signs the offset agreement within at most 90 days from the sign-off date of the procurement agreement, and not within 60 days, as it was stipulated in the previous settlement.
Law No. 381/2006 came into force on 16 October 2006.
Public Procurement Agreement
Government Decision No.1337/2006 (The Official Gazette No. 846/2006)
Government Decision No. 1337/2006 completes Government Decision No. 925/2006 for the approval of the application norms regarding the award of the public procurement agreements, of the public work concession agreements, of the services concession agreements.
By the herein Government Decision, the President of the National Authority for the Regulation and Monitoring of the Public Procurements has the right to establish, by order, procedures and specific instruments by which any contracting authority can benefit of information included in the ascertaining documents available at the level of the National Authority for the Regulation and Monitoring of the Public Procurements, and related to the economic operators that participate in a certain procurement procedure applied by the respective contracting authority.
For more information: http://www.mcti.ro; http://www.e-licitatie.ro