New changes to public procurement legislation, aimed at simplifying and shortening the total duration of procedures
1 September 2021
Ordinance no. 3/2021 for the amendment and completion of some normative acts in the field of public procurement was published in the Official Gazette, Part I, no. 821 of August 27, 2021, a legal enactment meant to introduce measures for the fluidization of public procurement system.
According to the explanatory memorandum, the ordinance, which entered into force on August 30, 2021, aims to simplify, reduce the deadlines for the public procurement process and accelerate the award of public procurement contracts, in the context in which public procurement litigation is a constant factor of delay in the implementation schedule of projects financed by European funds.
In this sense, through the new normative act, a series of amendments are operated at the level of Law no. 98/2016 on public procurement, Law no. 99/2016 on sectoral procurement, Law no. 100/2016 on works concessions and service concessions, respectively of Law no. 101/2016 on remedies and appeals concerning the awarding of public procurement contracts, sectorial contracts and concessions and for the organization and functioning of the National Council for Solving Complaints, with the following main amendments being adopted:
- the economic operator declared winner of the tender, will be obliged to present tax certificates only for the main office, while for the secondary offices/work points a sworn declaration will suffice, stating that it has not breached its tax obligations or those on social security contributions;
- reducing the duration of the entire public procurement process, through a series of measures such as:
o reducing from three days to one day of the time limit within which the contracting authority is required to make public the decision to cancel the award procedure;
o reducing the maximum period by which the time limit for drawing up the procedure report may be extended from 80 days to 15, 30 or a maximum of 50 days, depending on the type of procedure;
o the term in which the contracting authority is obliged to carry out the measures ordered by decisions issued by the National Council for Solving Complaints ("NCSC") or by the court, shall be reduced from 20 working days to 10 working days from the communication of the respective decisions;
o the possibility for the winner of the tender in a simplified procedure to request an extension of the deadline for the submission of supporting documents proving the information contained in the European Single Procurement Document (ESPD) shall be eliminated.
- probably the most important change is that, if the result of the public procurement procedure has been contested, the contracting authority will be required to sign the contract with the successful tenderer, following a decision to maintain the outcome of the award procedure, issued by the NCSC or by the court, even if an appeal was brought against that decision and the case was not definitively resolved. Prior to this amendment, the contracting authority had only the right, not the obligation, to sign the contract with the successful tenderer before the final settlement of the case.
- for the situation in which the decisions of NCSC are challenged with a complaint to the court, the possibility to submit new documents as proof has been eliminated, being expressly provided that no new evidence can be submitted, in addition to those filed in the initial appeal.