Last updated: 13 May 2014
Early this year, the European Parliament adopted a legislative package for the amendment of the European Directives on public procurement. This package also comprises the Directive proposal on the award of concession contracts, which, up to present, has only been partially regulated at the European level. Moreover, the EC Regulation 1336/13/12/2013 amending directives on public procurement has also entered into force as of January 1st 2014; this regulation will apply immediately and directly in Romania.
The member states, including Romania, have at their disposal 24 months from the entry into force of the new regulations to implement them into their national legislation.
The new regulations modify the way the "most economically advantageous tender" award criterion is being approached, expressly providing that public authorities are required to include criteria relating to quality, accessibility, environment and innovation, while continuing to take into account the acquisition price and its implementation costs. Until now, these criteria were provided as optional and not compulsory. Moreover, the "lowest price" criterion has been changed to "the lowest cost" criterion. The latter can only refer to the price (as it was happening until now), but it can also be approached based on the life cycle cost.
New rules on subcontracting have been set out, i.e. the possibility for contracting authorities to pay subcontractors directly for the services and works provided to the main contractor.
The European regulations bring about new clarifications regarding the impossibility to bring substantial modifications to the contract without organising a new procurement procedure. Although the replacement of the contractor is generally considered a substantial modification and therefore it is forbidden, in certain conditions, strictly laid down by the directive, it becomes possible without the need for a new procedure, such as the case of insolvency or restructuration operations.
Article published by BRCC News & View, May 13, 2014
Less red tape for public procurement procedures
The procedure for the submission of tenders shall be simpler and the proof of fulfilling the criteria for participation shall be initially made based on sworn statements. It is only the winner who shall subsequently submit original documents. In order to facilitate cross-border tendering procedures, the Online Certification Archive (e-Cergis), as well as the possibility of obtaining European passports for public procurement procedures have been introduced. Moreover, the European regulations set out new participation conditions and the failure to comply with these conditions may lead to the tenderers' exclusion.
Concession contracts
The major objective is to ensure an easier access to the award of concession contracts. It aims at standardising the principles of the Treaty on the European Union and eliminating the different interpretations of these principles at a national level, by multiple amendments. Thus, it is proposed that the definition of the concession contract be tied to the notion of operational risk transferred to the concessionaire and it expressly states which risks are considered as "operational".
New value thresholds
The value threshold already present in our legislation for advertising contract notices for public works concession contracts in the EU Official Journal is extended to all types of concession contracts. The Directive sets out the obligation to publish in the EU Official Journal the concession notice regarding service concession contracts with a value equal or superior to €2,500,000.
The new Directive does not propose strict award procedures for concession contracts, allowing the contracting authorities to apply flexible procedures, but in exchange it sets out an articulate legal framework, based on the same principles of transparency and correctness. The new directive on concessions also brings clarity with respect to substantial modifications leading to the need to organise a new procedure, by incorporating the principles confirmed by the recent decisions rendered by the EU Court of Justice.