The new Ordinance will have major consequences both for the contracting authorities and for the economic operators participating in the procedures for the award of public procurement or concession agreements.
Novelties:
Article 161 under GEO 34/2006, pursuant to which autonomous administrations (“regii autonome”) or state owned / business companies were exempted from the application of this law, being under the obligation to award contracts according to their internal rules has been repealed. Thus, pursuant to the Ordinance, these companies will, from now on, be under the obligation to award the public procurement contracts strictly pursuant to the provisions of GEO 34/2006.
Other significant amendments brought under the Ordinance regard the settlement of complaints. Thus, in addition to the elements to be included in the complaints filed under public procurement procedures, a new requirement has been added to the effect that complainants must prove the existence of a legitimate interest.
Also falling to the responsibility of complainants will be a good faith guarantee to be deposited along with the complaint/ petition/ claim. Failure by complainants to do so will entail the dismissal of such actions by the National Council for Complaints Resolution (the “Council”), or by the court of law. In exchange, under the new Ordinance the contracting authorities will no longer withhold a quota of the participation guarantee deposited for participation in the award procedure if the Council dismisses a complaint on its merits.
The contracting authorities will have a shorter time interval for expressing their view on the complaints submitted. Thus, under the new provisions, the contracting authorities must send their point of view to the Council within at most 5 working days after receipt of a complaint.
Also, the complainants will from now on benefit from easier access to the entire procurement file, therefore also to the technical offers and qualification documents submitted by the tenderers under the award procedure, by simply filing a petition with the Council. Consequently, only the Council or the court of law will be in a position to determine the extent to which a complainant may have access to the procurement file, with the requirement to obtain the express approval of the other tenderers having been removed.
