Last updated: 21 April 2021
The general rules related to the participation of third-countries operators in public procurement procedures in Romania were redefined and are now in line with the European guidelines on public procurement,.
Thus, the Government Emergency Ordinance no. 25/2021, published in the Official Gazette no. 346 of April 5, 2021, redefines the notion of “economic operator”, expressly excluding economic operators from third countries that are not signatories of the agreements cited by the ordinance and whose quality and performance standards are not consistent with the European rules.
The adoption of this GEO is anticipatory of the award procedures in major investment projects, in the field of railway and road transport, financed from structural and investment funds, which are expected to be implemented shortly in Romania.
Thus, in order to avoid difficulties in implementing these projects of national interest, it was decided to exclude from public procurement procedures in Romania, the economic operators who, according to the legislator, do not provide sufficient guarantees on compliance with certain requirements, such as quality certificates, environmental standards and sustainable development, requirements related to working conditions and social protection, competitive policies.
The new rules regarding the access of certain economic operators to procurement procedures have been redefined in order to be coherent with the provisions of art. 25 of Directive 2014/24 / EU on public procurement binding Member States to ensure equal treatment between economic operators in the European Union and economic operators in the signatory states of the agreements referred to in this text of law.
In our view, this change has been necessary for a long time, given the European Commission Communication no. C(2019)5494 of 24.07.2019 rolling up guidelines on the participation of tenderers and goods from third countries to the EU public procurement market.
The new definition of economic operator
The GEO no. 25/2021 has redefined the notion of economic operator, by expressly providing their originating in:
- a member state of the European Union;
- a member state of the European Economic Area (EEA);
- third countries that have ratified the Government Procurement Agreement of the World Trade Organization (GPA), insofar as the awarded public procurement contract falls under Annexes 1, 2, 4 and 5, 6 and 7 to Appendix I of the European Union to that agreement;
- third countries that are in the process of joining the European Union;
- third countries that are not covered by the GPA, but which are signatories to other international agreements binding the European Union to grant free access to the market in the field of public procurement. The list of all signatory states to the GPA, as well as those currently in the process of joining, can be consulted HERE.
Thus, currently, economic operators that do not fall into any of the above categories (including those from China) can not participate in a public procurement procedure in Romania.
Moreover, the contracting authority / entity will automatically exclude from the procedure that economic operator that does not fall within the new definition, without further checking of compliance with the grounds for exclusion provided by law.
Applicability of the ban
Economic operators who are in one of the above situations have the right to participate in a public procurement procedure both as individual bidder and as associated bidder (part of an association agreement), candidate, third party supporter or subcontractor.
The new ban was introduced in the entire legislative package in the field of public procurement and concessions, namely Law no. 98/2016 on public procurement, Law no. 99/2016 on sectoral procurement and Law no. 100/2016 on works and service concessions.
Therefore, this rule applies both in public procurement procedures and in sectoral procurement procedures or the award of works and services concession contracts, irrespective of the value of the procedure.