Reff & Associates | Deloitte Legal secured favorable solutions in a series of complex public procurement disputes for a client providing specialised services to the defense industry

Reff & Associates | Deloitte Legal has secured favorable solutions in a series of complex public procurement disputes concerning the validity and legal effects of a negative performance certificate issued in connection with the execution of a contract in the national defense industry. The matter was of critical importance for the continuity of the client’s business operations, a leading national company, as the negative performance certificate had the potential to result in its exclusion from participation in more than ten public procurement procedures.

The court decisions obtained by the Reff & Associates | Deloitte Legal team establish important judicial guidance regarding the legal requirements for the issuance of negative performance certificates, the limits of their effects, and the right of economic operators to demonstrate the implementation of remedial measures.

Accordingly, the Bucharest Court of Appeal ruled against the client’s exclusion from a series of procurement procedures, confirming that the mere existence of a negative performance certificate does not automatically justify such a sanction, provided that the participant delivers evidence that it has implemented compliance measures to address the circumstances that led to the issuance of the certificate.

Subsequently, the Pitești Court of Appeal annulled the negative performance certificate in proceedings that involved complex technical aspects and sector-specific features related to the defense sector.

In parallel with the court proceedings, the Reff & Associates | Deloitte Legal team assisted the client in adopting internal procedures and measures designed to address the issues underlying the issuance of the negative performance certificate. These measures enabled the client to maintain its eligibility to participate in public procurement procedures pending the final resolution of the litigation challenging the certificate.

The Reff & Associates | Deloitte Legal litigation team advising on the matter was led by Ana Galgoțiu-Săraru, Counsel, and included Elena Iacuba, Senior Associate, while specialized assistance in commercial law and public sector matters was provided by Adrian Coman, Senior Managing Associate, under the coordination of Georgiana Singurel, Partner.

“These rulings confirm that, even in sectors subject to a special regulatory framework, such as the defense industry, measures adopted by public authorities must be based on transparent and objective criteria and remain subject to effective judicial review. We are pleased that these mechanisms, combined with our team’s multidisciplinary approach, contributed to safeguarding the continuity of the client’s business operations,” said Ana Galgoțiu-Săraru, Counsel, Reff & Associates | Deloitte Legal.