Last updated: 10 October 2022
Some important changes have been brought to the legislation on public procurement, enacted in the Law no. 208 of July 11, 2022, published in the Official Gazette 697/2022. Under the new law, the threshold for direct award procedures, for both products and services, was doubled and contracting authorities became subject to new obligations within the framework of the direct award procedure. The law also introduced changes regarding the settlement of disputes arising from the award of public contracts, sectoral contracts and works and services concession contracts.
These changes entered into force on September 10, 2022 and apply to public procurement procedures as of this date.
There follows an overview of the main legislative changes in public procurement.
Increase (doubling) of the thresholds for direct purchases
The estimated value thresholds up to which contracting authorities are authorized to purchase by direct award products, services or works (art. 7 par. 5 of Law no. 98/2016), have been doubled as follows:
- from 135,060 lei to 270,120 lei (about € 54,500) – for direct award purchase of products or services;
- from 450,200 lei to 900,400 lei (about €181,900) – for direct award purchase of works.
The underlying legal act for such direct award purchase may take the form of a public procurement contract, an order or any other type of document, including for purchases initiated by means of payment instruments allowing their holder to use them to make payments, without cash, for the purchase of products, services and/or works via a terminal, such as, but without limitation to payment cards and/or electronic wallets.
New rights and obligations of contracting authorities
- The obligation to use the electronic catalog available on the SEAP platform or to publish an announcement on its own website or on that of the SEAP, accompanied by a description of the products, services, or works to be purchased, for purchases with an estimated value over 200,000 lei excluding VAT (about €40,400) for products and services; and 560,000 lei excluding VAT (about €101,000), for works. The new thresholds are double as compared to the previous ones.
- The obligation to refer to at least three economic operators for purchases with an estimated value over 140,000 lei excluding VAT (about €28,200) for products and services, respectively 300,000 lei excluding VAT (about €60,600) for works, without exceeding 560,000 lei. The contracting authority may proceed with the planned purchase even if, after consultation, receives only one valid offer.
- The right to proceed with the intended purchase from a single offer, if the estimated value of the purchase is less than or equal to 140,000 lei excluding VAT for products and services, and 300,000 lei excluding VAT for the works. For the record, the previous regulations provided for a unique 70,000 lei threshold without distinguishing between services and works.
- The right to pay directly, based on the legal deed, without prior acceptance of an offer, if the estimated value of the purchase is less than 9,000 lei excluding VAT – compared to 4,500 lei in the previous regulations (which did not distinguish between the purchase of goods and services / the purchase of works).
- The obligation to publish quarterly on the SEAP platform a notification on direct purchases, grouped by necessity, indicating at least the object, the quantity purchased, the value and the CPV code, except for purchases made through the SEAP electronic catalog.
New deadline for requests for clarification
Tenderers/candidates shall have maximum 15 working days to respond to any request for clarification. Extension thereof is possible, depending on the complexity of the request. For the record, in the previous regulations, there was no deadline set to reply to a request for clarification.
Settlement of disputes before the courts
The law establishes a period of 45 days for the settlement of lawsuits and claims for compensation for damages arising from the award procedure, as well as for those resulting from the execution, cancellation, nullity, termination, or unilateral denunciation of contracts.
The law also introduces among the disputes falling under the administrative and tax litigation section of the court, lawsuits and claims relating to the execution, termination, cancellation or unilateral termination of contracts.
Challenging the finding documents
Finding documents issued by the contracting authority / entity containing information about the performance / non-performance of the contractor's contractual obligations and, where applicable, damages, may be challenged before the administrative and tax litigation chamber of the court, within the 30 days following the date of communication to the contracting party, according to the provisions of Section 2 - Settlement of legal disputes.
Challenging the nullity of the contract
Becomes regulated ANAP's right to refer to the court to declare null and void the contract/addendum entered into without complying with the conditions required, as the case may be, under the law on public procurement, sectoral procurement or works concessions and services, as well as to restore the parties to their previous situation.
The Register of tools, equipment ans installations
The Order no. 1417/2022 approved the Methodological Norms for setting up, operating, and using the Register of tools, equipment, and installations, which must be filled in by the economic operators wishing to participate in the award procedures of public / sectoral contracts in the field of transport infrastructure projects.
This register is an electronic database collecting the information necessary to identify the tools, equipment and installations held by the bidders. Once logged in the SEAP platform, the economic operators may access it and see the list of all the tools, equipment and machines held by the economic operator, the identification data for each of these items, the history of previous versions, the person(s) who provided the information (economic operator, contracting authority), the public/sectoral procurement procedures under which the item was declared available, as well as the contracts in which the item was available and the corresponding period.
Thus, starting with the 1st of March 2023, the contracting authorities will be able to provide in the documentation whether or not the bidders are required to fill in the tools form, when submitting electronically their bid.
The system will be able to determine if a particular item, listed as available in a tender submitted in a public / sectoral award procedure, is also made available to another beneficiary under a contract already signed and if there are overlapping periods of use of the same machine. In this case, the system will automatically notify it to the contracting authorities concerned, as well as to the tenderers / contractors who have declared the respective item available.