Nemoianu Attorneys at Law the correspondent law firm of ...

LEGAL NEWSFLASH

Nr. 24 , December 2011

Nemoianu Attorneys at Law – the correspondent law firm of KPMG in Romania

New amendments to public procurement legislation

KPMG in Romania

Government Emergency Ordinance no. 34/2006 regarding Direct award
the award of public procurement contracts, of public works One of the amendments introduced imperatively sets out
concession contracts and of services concession contracts that where the procurement of products, services or works
has been amended under Law no. 945/2011, published in does not exceed the RON equivalent of EURO 15,000, the
Official Journal no. 872 of 9.12.2011. direct award procedure must be applied.

The new regulation is intended to supplement the legislative Award procedure
framework governing the award of public procurement Following the amendment of art. 20 under GEO 34/2006,
contracts, public works concession contracts and services the contacting authorities must apply the open tender or
concession contracts regulated under Government restricted tender procedures only where the estimated value
Emergency Ordinance no.34/2006 (GEO 34/2006), via the of the public procurement contract is higher than:
introduction of a number of new rules and amendments,
some of which are as follows: a) EURO 125,000, for products or services contracts;
b) EURO 4,845,000 for works contracts.
Private-public partnership projects
Under the new rules, a private-public partnership project It is also expressly provided, for the award of public
shall be subject to public procurement regulations, with a procurement contracts whose value is higher than the RON
new article 81 being introduced in this respect. Thus, once a equivalent of Euro 15,000 but without exceeding the
private-public partnership (PPP) has been established, any thresholds above, the contracting authorities must issue a
acquisitions made during the PPP project shall be subject to call for tenders.
the public procurement regime.

Where additional works or services, not included in the initial Cancellation of award procedure
public procurement contract, must be acquired, the new With regard to the possibility to request the annulment of a
regulation sets forth that “the cumulated value of the public procurement contract, art. 2961 under OUG 34/2006
contracts to be awarded and of the addenda to be provides that the National Authority for Public Procurement
concluded for such additional works and/or services may Regulation and Monitoring (ANRMAP) may request the
not exceed 20% of the initial contract value” thus removing court to state the absolute nullity of such contracts where:
the possibility to increase the contract value by a maximum (i) the contracting authority has failed to meet / has changed
of 50% in exceptional circumstances, as previously the qualifying and selection and/or the evaluation criteria
stated. provided in the call for tender/notice of participation;
(ii) the amendment of the contract has led to a diminution of
Third-party support advantages and, as the case may be, of the evaluation
Under the new regulation, supporting third parties are criteria based on which the winning bid was assessed.
prohibited from participating in a tender organized for the
same contract award procedure, on pain of being excluded Also, for duly justified reasons, before a judgment on the
from the tender. merits of the case is rendered, the court may, in response to
ANRMAP’s request, suspend the contract under a
Art. 691 sets forth that any bidder, candidate, partner bidder, preliminary court ruling.
subcontractor or supporting third party who is in a conflict of
interests, shall be excluded from the award procedure. Following these recent amendments, Decision no. 925 of 19
July 2006 approving the norms for the application of the
Also, where a bidder/candidate proves its economic and provisions regarding the award of public procurement
financial status or its technical and professional capacity by contracts set out under GEO no. 34/2006 regarding the
invoking the support provided by a third party, such party award of public procurement contracts, public works
must not be in a situation that would lead to its exclusion concession contracts and services concession contracts is
from the award procedure, as set out under art. 180 and art. expected to also be amended in order to harmonize the
181 lit. a), c1) and d) of GEO 34/2006. legal provisions in the specific field.

Assignment About us
Further to the amendments brought, GEO 34/2006 includes
a new article 2041, which provides that under a public Our lawyers are business-oriented advisors with legal and
procurement contract it is only the receivables arising from financial background, with strong negotiation skills and a
that specific contract that may be assigned, whereas the result-driven approach. Having a thorough understanding of
liabilities deriving from such contracts shall remain under the the specifics of various industries, our professionals offer
responsibility of the contracting parties as initially assumed. uniform quality, observe tight deadlines, anticipate clients’
needs and meet their requirements with professionalism and
Complaints proficiency.
Under the newly introduced art. 2781, the contracting
authorities may withhold a percentage of the participation Over the last 17 years, we have gained a strong track
guarantee only where the National Council for Complaints record of large transactions brought to a successful
Resolution (CNSC) rejects a complaint as groundless, completion, advising our clients and delivering clear,
(under the former regulation, the contracting party withheld pragmatic advice on various matters such as financial
such a percentage for any rejected complaint). services, mergers & acquisitions, public sector,
restructuring, energy and employment. We actively assist
our clients, tailoring our services to help investors develop
investment strategies, seeking cost-effective solutions and
protecting their interests.

Contact details: Servicii

Daniela Nemoianu  Impozitul pe profit
Executive Partner  SeIrmvipcoezsitare internaţională
[email protected]
 Corporate and Commercial
Nemoianu Attorneys at Law  Banking, Finance & Insurance
The correspondent law firm of KPMG in Romania  M&A
 Private Equity & Capital market
Victoria Business Park  Public sector & Infrastructure
DN1 Bucuresti Ploiesti nr. 69-71  Energy & Utilities
Sector 1, Bucuresti 013685, Romania  Employment
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Fax: +40 372 377 700  Competition
 Intellectual Property Rights
Internet: www.kpmg.ro  Communications &Technology
 E-business
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as of the date it is received or that it will continue to be accurate in the future. No one should
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© 2011 KPMG Romania S.R.L., a Romanian limited liability company and a member firm of
the KPMG network of independent member firms affiliated with KPMG International
Cooperative (“KPMG International”), a Swiss entity. All rights reserved. Printed in Romania.