Amendments brought to the legislation in the field of public procurement regarding the state of origin of

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Amendments brought to the legislation in the field of public procurement regarding the state of origin of an economic operator that can participate in procurement procedures, introduced by Government Emergency Ordinance no. 25/2021.

9 April 2021

On April 5, 2021, Government Emergency Ordinance no. 25/2021 on amending and supplementing several laws in the field of public procurement was published in the Official Gazette Part I no. 346.

The amendments aim at defining the categories of economic operators that can take part in the award procedures according to the country of origin, including, inter alia, even non-EU operators, provided they are established in states that have ratified the Agreement on Government Procurement of the World Trade Organization.

Furthermore, those economic operators that are not part of the list provided by the Ordinance will be automatically excluded from the award procedure.

Amendments brought to the legislation in the field of public procurement regarding the state of origin of an economic operator that can participate in the procurement procedures, introduced by Government Emergency Ordinance no. 25/2021

  • The amendments introduced by Government Emergency Ordinance no. 25/2021 aim to extend the definition of "economic operator" meaning that they may be established in:
    • a Member State of the European Union;
    • a Member State of the European Economic Area (SEE);
    • third countries that have ratified the Agreement on Government Procurement of the World Trade Organization (GPA) insofar as the sectoral contract awarded is specifically covered by the Annexes set out under Appendix I to the European Union to this Agreement;
    • third countries in the process of accession to the European Union;
    • third countries which are not covered by the AAP but which are signatories to other international agreements by which the European Union is obliged to grant free access to the public procurement market.
  • The United States, Canada, Iceland, are, for example, states that have ratified the GPA, and the list of all signatory states can be found here.
  • Regarding the capacity in which such economic operators may take part in the award procedures, it is explicitly regulated that they may also participate as a tenderer/candidate/third party supporting entity/subcontractor.
  • Government Emergency Ordinance No. 25/2021 provides for the obligation of contracting authorities and entities to ensure equal and non-discriminatory treatment, to act in a transparent and proportionate manner with all economic operators as defined above and to grant, as the case may be,  equal treatment to works, products, services and economic operators in the European Union'".
  • The ordinance also provides that any operator who does not fall within the list of definitions provided for above is excluded from the award procedure without assessment of the general selection and award criteria.
  • Emergency Ordinance No. 25/2021 covers the definitions included under the entire legislative package on public procurement and concessions, as follows:
    • Law No. 98/2016 on public procurement;
    • Law No. 99/2016 on sectoral procurement;
    • Law No. 100/2016 on works concessions and service concessions.
  • Emergency Ordinance No. 25/2021 transposes the provisions of Article 25 of Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC, published in the Official Journal of the European Union, series L, no. 94 of 28 March 2014 and Article 43 of Directive 2014/25/EU of the European Parliament and of the Council of 26 February 2014 on procurement by entities operating in the water, energy, transport and postal services sectors and repealing Directive 2004/17/EC,  published in the Official Journal of the European Union, series L, no. 94 of 28 March 2014.