Public Procurement 2024 Comparisons

Overview of Procurement Legislation in Romania

In Romania, public procurement is governed by a three-tiered regulatory framework. When it comes to the primary legislation, the most significant laws are:

• Law No 98/2016 on Public Procurement;
• Law No 99/2016 on Sector Procurement; and
• Law No 101/2016 on Remedies for the Award of Public Procurement Contracts, Sector Contracts, Work Concessions, and Service Concession Contracts, as well as the Organisation and Functioning of the National Council for the Settlement of Complaints.

Additionally, other legal provisions must be considered due to the specific nature of the Romanian legal system. For example, public contracts typically involve public funding, so foreign participants in Romanian public procurement procedures must also comply with Romanian Budgetary Law No 500/2002 regarding public finances and Budgetary Law for Local Authorities No 273/2006 regarding local public finances. Concerning Law No 101/2016, its provisions should be supplemented by those of the Law on Administrative Litigation No 554/2004, the Law on the Civil Procedure Code No 134/2010, and the Law on the Civil Code No 287/2009, insofar as the provisions of the latter are not inconsistent.

Secondary legislation governs the implementation of laws and includes government decisions designed to develop and guide the specific steps required to apply the rules established in the laws:

• G.D. No 394/2016 for the approval of methodological norms for the application of the provisions regarding the award of sectoral contracts/framework agreements of Law No 99/2016 on Sector Procurement; and
• G.D. No 395/2016 for the approval of methodological norms for the application of the provisions regarding the award of public procurement contracts/framework agreements of Law No 98/2016 on Public Procurement.

Tertiary legislation consists of instructions issued by public authorities and institutions authorised to publish guidance on recurring issues, such as the required documents to demonstrate similar experience or subsidiary methodology for price adjustment in public contracts (if the contract does not contain an adjustment formula).

The Role of Jurisprudence in the Romanian Legal System

The role of jurisprudence in the Romanian legal system is also noteworthy. Although it is not generally considered a source of law, certain types of decisions are mandatory for national courts and administrative jurisdictions:

• decisions of the Court of Justice of the European Union, which establish obligatory directions in the field of public procurement;
• decisions of the High Court of Cassation and Justice of Romania made in appeals in the interest of the law and preliminary rulings on questions of law; these decisions provide interpretation and guidance on the applicable legal framework, and their effects are binding; and
• decisions of the Constitutional Court of Romania, which examine the compatibility of legal provisions with the country’s constitution; compliance with these decisions is also mandatory.

In conclusion, In Romania, the legislation regulating public procurement can be divided into three layers:

• primary legislation, which mainly includes the three laws issued by the Parliament (Law No 98/2016 on Public Procurement, Law No 99/2016 on Sector Procurement, and Law No 101/2016 on Remedies), as well as mandatory case law;
• secondary legislation, consisting of governmental decisions that provide guidance on the applicability of public procurement procedure laws (G.D. No 395/2016 and G.D. No 394/2016); and
• tertiary legislation, which includes guidelines issued by the National Agency for Public Procurement in Romania (Agenția Națională pentru Achiziții Publice, or ANAP), which are mandatory for contracting authorities.

The entities subject to procurement regulation in Romania are:

• contracting authorities, as defined in Article 4 of Law No 98/2016;
• legal entities that are not contracting authorities but are treated as such when they enter into contracts falling under the definition provided by Article 6 of Law No 98/2016; and
• economic operators.

Contracting Authorities

Under Law No 98/2016, a contracting authority is defined as:

• central or local authorities and public institutions, as well as their subordinate structures that have been granted competencies in the field of public procurement;
• other bodies governed by public law that are established to meet non-commercial or non-industrial needs of general interest, have legal personality, and are mostly funded by public funds; for a body governed by public law to be considered a contracting authority, it must not operate under normal market conditions, seek to obtain a profit or bear the losses resulting from its activity; and
• associations comprising at least one of the entities mentioned above.

Non-contracting Authorities

A non-contracting authority must apply public procurement regulation when awarding contracts for works and services if the following conditions are met cumulatively:

• over 50% of the value of the contract comes from public funds;
• the estimated value of the contract, excluding VAT, is equal to or greater than the threshold for works contracts (RON27,334,460), or for services contracts (RON1,090,812); and
• the contract relates to one of the following activities: civil engineering works or construction works for hospitals, facilities for sports, recreational activities, buildings of primary and secondary educational institutions, university buildings, and administrative buildings.

Economic Operators

Finally, an economic operator is any natural or legal person, public or private, or group or association of such persons that lawfully offers the execution of works and/or construction, supply of products, or provision of services, including any temporary association formed between two or more of these entities.

In Romania, the following types of contracts are subject to procurement regulation:

• procurements related to national defence and security, which are subject to a more sophisticated legal framework; this framework includes Law No 195/2012 on the Award of Certain Public Procurement Contracts in the Fields of Defence and Security, as well as various governmental decisions and ministerial orders;
• sector/utility procurements regulated by Law No 99/2016; this includes products, services, or works in fields such as electrical energy, water, transportation, ports and airports, and postal services; and
• classic procurements and organising competitions that exceed the legal thresholds, where the value of each exceeds the legal thresholds.

These thresholds are different for works and services contracts. For works contracts, the following apply:

• over 50% of the value of the contract must be financed or subsidised directly or indirectly by a public authority;
• the estimated value of the contract (excluding VAT) is equal to or greater than RON27,334,460 (equivalent to EUR5,493,800); and
• the contract relates to civil engineering works, construction work for hospitals, facilities intended for sports, recreation and leisure, schools, and university works or buildings used for administrative purposes.

For services contracts, the following apply:

• over 50% of the value of the contract must be financed or subsidised directly or indirectly by a public authority;
• the estimated value of the contract (excluding VAT) is equal to or greater than RON1,090,812 (equivalent to EUR219,200); and
• the contract is linked to a works contract.

According to Romanian legal provisions, entities can participate in public procurement contracts if they are established in:

• member states of the European Union;
• member states of the European Economic Area (EEA);
• third countries that have joined the World Trade Organization (WTO);
• third countries that are in the process of accession to the European Union; or
• third countries that have not joined the WTO, but have signed other international agreements requiring the European Union to grant free access to their market in the field of public procurement.

When the estimated value of a contract is equal to or greater than the legal thresholds, contracting authorities are required to publish a notice in the Official Journal of the European Union.

The general principles presented in Article 2 of Law No 98/2016 establish key obligations for both contracting authorities and economic operators, aimed at promoting non-discrimination, equal treatment, mutual recognition, transparency, proportionality, and assuming responsibilities. These obligations are crucial for ensuring integrity, effectiveness of public funds, society’s access to high-quality public services, and competitiveness in the private market.

Contracting authorities’ key obligations are related to allocation of the necessary funds for the procurement process and contract execution before starting the procedure. They are also required to publish a contract notice, act with transparency and allow all interested operators to engage in the bidding process. Another important obligation is to draft qualification and awarding criteria in a transparent and equitable manner that satisfies public interest while avoiding unlawful advantages or arbitrary evaluation. To ensure compliance with these obligations, avoiding conflicts of interest is also a key requirement.

To ensure compliance with fundamental principles, Law No 98/2016 requires contracting authorities to fulfil publication and transparency obligations throughout all phases of the procurement process. This includes publishing the Prior Information Notice and the Award Documentation.

All notices must be published in the Electronic System for Public Procurements (Sistemul Electronic de Achiziții Publice, or SEAP), a public electronic system where participants can access information on public procurement procedures. Contracting authorities must also publish a notice in the Official Journal of the European Union when the estimated value of the contract is equal to or greater than the legal thresholds.

The Prior Information Notice includes information such as the type of procedure (eg, simplified procedure, open procedure or solution contest), type of contract (eg, works or services), procedure status (eg, in progress or cancelled), a draft contract (eg, public procurement contract or framework agreement), Common Procurement Vocabulary (CPV) code, contracting authority, and time limit for submitting tenders. This notice is accompanied by the Award Documentation.

The Award Documentation serves as a guidebook for every economic operator interested in participating in a public procurement procedure in Romania. It is published in SEAP so that all economic operators have equal access to it and can prepare their tenders accordingly. It establishes the main technical and financial requirements of the contract.

The Award Documentation is typically divided into two parts: a technical part and a financial part. The technical part includes specifications, the technical project of execution, the time schedule based on activities, and lists of materials and equipment. The financial part includes the financial conditions that must be met by the tenders, which must be correlated with the technical specifications described in the technical tender.

The Award Documentation also includes procedural rules and relevant information, such as standard forms and templates of documents to be presented by tenderers.

When a contracting authority wishes to purchase products, services, or works with a high degree of technical complexity, whether financial or contractual, or in areas with rapid technological progress, it has the right to organise a market consultation before initiating the award procedure by publishing a Consultation Notice on SEAP.

The authority may invite independent experts, other public authorities, or economic operators to help prepare for the purchase by providing information about the object of the contract and informing economic operators about purchase plans and requirements. This includes:

• potential technical, financial, or contractual solutions for meeting the needs of the contracting authority;
• aspects related to the contracting strategy, including batch division; and
• the possibility of requesting alternative offers.

The contracting authority may use or implement suggestions received during consultations, provided that doing so does not distort competition or violate principles of non-discrimination and transparency.

The contracting authority is required to publish the outcome of the market consultation process on SEAP, but no later than the launch of the award procedure.

If a candidate related to the procurement procedure has provided suggestions to the contracting authority in relation to the preparation of the procedure, including during consultations, the authority must take necessary measures to ensure that the participation of the respective candidate does not distort competition.

Romanian law establishes the following types of procedures that can be used for public procurements:

• open procedure;
• restricted procedure;
• competitive procedure with negotiation;
• competitive dialogue;
• innovation partnership;
• negotiated procedure without prior publication;
• solutions contest;
• procedure applicable to social and other specific services; and
• simplified procedure.

The contracting authority chooses the type of award procedure based on the criteria established by the law, such as:

• the estimated value of the purchase;
• the complexity of the contract/framework agreement to be awarded; and
• the fulfilment of specific conditions provided by the law for each type of procedure.

If the estimated value of the purchase is equal to or greater than the legal thresholds, the contracting authority awards public procurement contracts by applying the open or restricted procedure.

The open procedure is generally suitable for less complex investments characterised by routine frequency, while the restricted procedure is suitable for more complex and non-routine purchases. The restricted procedure also involves an additional step during which the number of candidates is narrowed down based on clear selection criteria. The restricted procedure may be used when the contracting authority believes it will benefit from limiting the number of tenderers.

Under the law, the contracting authority has the right to directly purchase products or services if the estimated value of the purchase, excluding VAT, is less than RON270,120 (equivalent to EUR54,300), and to directly purchase works if the estimated value of the purchase, excluding VAT, is less than RON900,400 (equivalent to EUR180,900).

Even though this procedure does not fall under the European directives, the national legislature must ensure that the principles of non-discrimination, equal treatment and transparency are applied.

In the case of direct purchases, the contracting authority has the following obligations:

• to use the electronic catalogue provided by SEAP or to publish an advertisement on its website or on SEAP, accompanied by a description of the products, services or works to be purchased, for purchases whose estimated value is more than RON200,000 (equivalent to EUR40,200), excluding VAT, for products and services, and RON560,000 (equivalent to EUR112,500), excluding VAT, for works; and
• to consult at least three economic operators for purchases whose estimated value is more than RON140,000 (equivalent to EUR28,000), excluding VAT, for products and services, and RON300,000 (equivalent to EUR60,300), excluding VAT, for works, but less than or equal to the values mentioned above.

Besides obligations, the contracting authority has the following rights:

• to purchase on the basis of a single tender if the estimated value of the purchase is less than or equal to RON140,000 (equivalent to EUR28,000), excluding VAT, for products and services, and RON300,000 (equivalent to EUR60,300), excluding VAT, for works; and
• to pay directly, on the basis of the legal commitment, without prior acceptance of a tender, if the estimated value of the purchase is less than RON9,000 (equivalent to EUR1,800), excluding VAT.

Law No 98/2016 establishes a general rule for publication and transparency in all phases of public procurement procedures. Contracting authorities are required to publish the following notices in SEAP, where they can be accessed by all participants:

• prior intention notices (before starting the procedure) within 30 days of the end of each trimester;
• contract notices (to invite economic operators to participate in the procedure) 35 days before the deadline for submission of tenders; and
• contract award notices (regarding the results of the procurement procedure) within three days of the awarding decision to each candidate, while the final report is to be published within three days in SEAP.

Contracting authorities must also publish a notice in the Official Journal of the European Union if the estimated value of the contract/framework agreement is equal to or greater than the thresholds of RON27,334,460 (equivalent to EUR5,493,800) for works contracts and RON1,090,812 (equivalent to EUR219,200) for services contracts.

During the procedure, certain documents are published in SEAP to ensure transparency, including:

• the Award Documentation which is published for all economic operators to consult and prepare their tenders under conditions of equality;
• clarifications and answers thereto, which can include changes to the tendering conditions or explanations;
• errata notices, containing corrections of any mistakes that may have slipped into the documentation; and
• the Final Report of the Procedure, which announces the winner of the procedure; its publication marks the beginning of the seven or ten-day term for parties to file a complaint against the result of the procedure.

Any decisions rendered by jurisdictional bodies regarding complaints against the result of the procedure are also published, with the names of the parties anonymised.

Open Procedure

Following the publication of the contract notice, tenderers have 35 days to submit their tenders. If the tenders are submitted electronically, the time limit can be reduced to 30 days, or 15 days in emergency situations.

Restricted Procedure

In the case of a restricted procedure, which involves two stages, the time limits are as follows:

First stage

• 30 days to submit a request for participation from the publication of the contract notice; or
• ten days from the date of the contract notice if a prior information notice was published between 35 days and 12 months before the contract notice.

Second stage

Where only the selected candidates are going to participate and submit their tender:

• the tender must be submitted within 30 days from the invitation to participate; or
• 25 days if the tender is submitted electronically.

Emergency situations

In emergency situations, the time limits are 15 days from the contract notice for the first stage, and ten days from the invitation to participate for the second stage.

Simplified Procedure

The minimum period between the date of submission of the notice of participation and the time limit for submission of tenders is as follows:

• ten days for contracts for services or products;
• six days for contracts for low-complexity products; and
• 15 days for works contracts.

Emergency situations

In emergency situations, the time limit can be reduced to six days for services or products, and nine days for works.

Competitive Procedure With Negotiation

First stage

• 30 days to submit a request for participation from the publication of the contract notice in the Official Journal of the European Union; or
• ten days from the date of the contract notice if a prior information notice was published between 35 days and 12 months before the contract notice.

Second stage

The selected participants have 30 days from the date of submission of the invitation to participate, which can be reduced to 25 days if the tender is submitted electronically.

Emergency situations

In emergency situations, the time limit can be reduced to 15 days for the submission of requests to participate, while for the submission of initial tenders, it can be reduced to a period of ten days from the date of transmission of the invitation to participate in the second stage of the procedure.

Competitive Dialogue and Innovation Partnership

The time limit is 30 days from the date of submission of the notice of participation in the Official Journal of the European Union.

The qualification process arises in any award procedure, while the selection process only takes place when it is necessary to limit the number of qualified candidates. Therefore, the selection process is only necessary in the case of multi-stage award procedures; ie, restricted procedures, competitive negotiation, competitive dialogue and innovation partnership.

The qualification criteria verify if the tenderers have the concrete ability to perform the contract.

Selection criteria are designed to sort the qualified economic operators and select those with the best economic and financial, technical, and/or professional capacity. The selection, qualification, and award criteria must be linked to the requirements of the Award Documentation and must reflect the nature and complexity of the public procurement contract.

Contracting authorities often look at similar experience as a criterion for qualification or selection, as it allows them to assess whether economic operators have successfully completed tasks similar to those required by the contract. However, it is essential to differentiate between similar and identical experience. Requiring tenderers to have experience in exactly the same type of contract would be excessively restrictive and violate the principle of proportionality in public procurement procedures.

Under Romanian public procurement regulation, the contracting authority has the right to restrict participation in the awarding procedure when it comes to restricted procedure, competitive procedure with negotiation, competitive dialogue and innovation partnership.

In these cases, the contracting authority has the right to limit the pool of candidates who meet the qualification and selection criteria to a select number who will be invited to submit initial tenders, provided that a certain minimum number of candidates sufficient to ensure effective competition is ensured. The legislature has determined that a minimum number of five candidates is sufficient to ensure effective competition in restricted procedures, while a minimum number of three candidates is sufficient in competitive procedures with negotiation, competitive dialogue procedures and innovation partnership procedures.

The evaluation phase of a procurement process involves the qualification and selection processes, where the fulfilment of criteria previously established by the contracting authority is evaluated.

The grounds for exclusion, qualification criteria, selection criteria, and award criteria all play important roles in this phase. The grounds for exclusion serve to establish who should be excluded from the award procedure. The qualification criteria serve to establish who has the capacity to execute the contract. The selection criteria work in conjunction with the qualification criteria to identify those who have the necessary capacity and should submit offers in the next phase. Finally, the award criteria serve to answer the crucial question of which economic operator will fulfil the procurement objectives in the most efficient way.

The evaluation factors established by the Award Documentation must include objective award criteria that ensure proportionality on two levels:

• firstly, in relation to the advantage conferred on the contracting authority by awarding the contract to a particular bidder; and
• secondly, satisfying the interest of the successful tenderer by providing a framework to enable the efficient execution of the public procurement contract and the operator to collect the economic benefits that motivated it to bid for that contract.

The latter is often overlooked by contracting authorities, who justify their decisions only based on the satisfaction of the public interest. This argument is, in principle, correct – the public interest plays an important role in any public procurement procedure and its satisfaction is the mediated purpose of any procedure. However, it is equally true that the relationship established by the public procurement contract must be a balanced one, based on the principle of contractual co-operation and promoting the effective and successful execution of the contract. Frequently, the need for control is prioritised, at the expense of equity, potentially resulting in excessive burdens placed on the contractor during the negotiation of the contract model.

The award criteria listed in Article 187 of Law No 98/2016 include:

• best price-quality ratio;
• best cost-quality ratio;
• lowest cost; and
• lowest price.

The general nature of these terms provides contracting authorities with a wide range of options when defining the award criteria. For example, when using the best ratio of quality to price as the award criterion, the meaning of “quality” can vary depending on the specific contract. It could refer to the duration of the project, the use of specific materials, or the relevant experience of the tenderer, among other factors.

The contracting authority shall exclude from the contract award procedure any economic operator that:

• has infringed mandatory environmental, social and labour regulations laid down by legislation adopted at the EU, national or conventional level;
• is in insolvency proceedings or is being wound up, is under court supervision or has ceased trading;
• has committed serious professional misconduct which calls into question its integrity;
• has entered into agreements with other economic operators which aim to distort competition;
• is subject to a conflict of interest in connection with or in relation to the procedure in question;
• has caused a distortion of competition resulting from its previous participation in the preparation of the award procedure;
• has been in serious or repeated breach of its principal obligations under a public contract;
• has been guilty of misrepresentation in the information supplied at the request of the contracting authority; or
• has attempted to unlawfully influence the contracting authority’s decision-making process;
• has obtained confidential information; or
• has negligently supplied incorrect information.

With regard to almost all of these grounds for exclusion, the law provides that the contracting authority is obliged to request clarifications and the economic operator may submit any type of documentation proving that it has the capacity to perform the future contract and that it has regained its credibility on the market by implementing concrete measures to remedy the causes that led to the above situations.

Law No 98/2016 lays down general provisions for publication and transparency regarding the evaluation methodology, which cannot be modified after publication in SEAP.

The evaluation methodology allows the contracting authority to request clarifications from tenderers during the evaluation process.

These clarifications may concern small omissions, arithmetical errors, unclear formulations, or other related matters. However, it is important to note that the purpose of the clarification procedure is only to provide details on elements already present in the tenders, and does not permit modification or addition to the tenders.

The contracting authority must inform both the selected and the rejected bidders of the outcome of the selection process. The Authority must communicate the results to each candidate within three days of the issuing of the decision.

In the communication, the contracting authority must inform each rejected candidate about the concrete reasons for the rejection.

Following the general rule on communication, the written notice of rejection must be transmitted electronically or, in exceptional cases, by other means.

The contracting authority must send to the successful tenderer, within three days from the issuing of the decision, a communication on the acceptance of its tender, stating its agreement to conclude the public procurement contract/framework agreement.

The authority shall issue its decision through the Final Procedure Report. The report must be drafted within a period not exceeding:

• 60 days from the time limit for submission of tenders, in the case of an open procedure, restricted procedure, innovation partnership and solution contest;
• 20 days from the time limit for submission of tenders, in the case of the simplified procedure and the negotiated procedure without prior publication; or
• 100 days from the time limit for submission of tenders, in the case of competitive dialog and competitive procedure with negotiation.

There is no such obligation under Romanian public procurement law.

Under Law No 101/2016, the legal waiting period for the conclusion of the contract should be at least:

• 11 days from the day following the submission of the Contract Award Decision to the interested parties if the estimated value of the public procurement procedure is higher than the thresholds; and
• eight days when the estimated value is less than the legal thresholds.

Law No 101/2016 regulates the remedies and the procedure for challenging an award in public procurement, in accordance with the European Directive 89/665/EEC.

The Romanian legislature provides two ways of access to justice:

• the administrative-jurisdictional procedure before the National Council for Solving Complaints (Consiliul Național de Soluționare a Contestațiilor, or CNSC); and
• the judicial procedure before national courts of law.

The economic operator is free to choose the most suitable procedure from the two options. The main difference between the two relates to costs:

• The CNSC is free of charge, but requires the establishment of a security.
• The national courts do not require security, but there is a legal fee of 2% of the estimated value of the contract, but not more than RON100,000,000 (equivalent to EUR20,000,000).

Remedies That may be Granted by the Contracting Authority

Once the contracting authority has received the complaint, it may take any remedial action deemed necessary within three days (eg, cancelling and redoing an evaluation report in which a tenderer’s score was wrongly calculated, or revoking a rejection decision).

If an objector believes that the remedies adopted by the authority fully address their concerns, they should submit a request for waiver of the complaint. This will result in no further action being taken on the complaint, and the authority will no longer need to provide its viewpoint on the matter.

However, if the remedies only partially address the issues raised, the objector may submit a request to the CNSC and the authority to express their views on a partial waiver of the complaint. This means that the CNSC will continue to examine and decide on the remaining aspects of the complaint.

Remedies That may be Ordered by the CNSC

First of all, it is important to note that under the sanction of absolute nullity, the contracting authority is entitled to conclude the contract only after the communication of the solution by the CNSC.

The CNSC will first rule on the exceptions raised and then examine the complaint in terms of its legality and merits.

If the CNSC admits the complaint, it may order:

• annulment of the contested act in whole or in part;
• remedial measures to restore legality, in which case the CNSC will clearly indicate the limits of the remedial measures to be taken by the authority and the time limit within which the authority is to comply with the CNSC’s decision; or
• annulment of the award procedure when it is not possible to remedy it.

There are two statutory exceptions:

• when the objector requests the adoption of remedies, and the CNSC considers that they are not sufficient to restore legality and orders the annulment of the award procedure; and
• when the CNSC observes that, in addition to the acts challenged by the objector, there were other acts that violated the public procurement regulation and acts that were not referred to in the complaint; in this case, it will refer the matter to ANAP and the Court of Auditors under Article 26(4) of Law No 101/2016.

If, after the CNSC’s decision on remedies, the authority finds that it cannot comply with the CNSC’s decision without affecting the principles laid down in the public procurement regulation, it is legally obliged to cancel the award procedure.

In the event of a dispute, the CNSC has the power to suspend the award procedure. To do so, three conditions must be met:

• there must be a well-founded case;
• the suspension must be aimed at preventing damage; and
• the damage must be imminent.

If the CNSC grants the request for suspension, the award procedure is provisionally suspended, and no further steps can be taken until the complaint is resolved.

It is important to note that the CNSC can only suspend the award procedure at the request of an interested party. The contracting authority is required to provide its viewpoint on the request and may also order the suspension of the award procedure upon its own motion.

The CNSC must make its decision within three days of the suspension request, and the decision can be appealed within five days of the decision before the Court of Appeal.

Anyone who believes that their rights or legitimate interests have been affected by a contracting authority’s act may file a complaint. According to Law No 101/2016(3)(1)(f), a person may be considered injured if they are an economic operator with an interest in an award procedure and have suffered or risk suffering prejudice due to an act of the contracting authority that can produce legal effects or the failure to resolve a request concerning an award procedure within the legal timeframe.

To be considered an injured party, two conditions must be met: interest and prejudice. As a result, third-party supporters, subcontractors, or suppliers cannot challenge the authority’s decisions instead of the tenderer because they do not have a direct interest in the case’s resolution.

If the tenderer is an association, any member of the association may challenge the awarding authority’s decision.

The time limits for challenging an illegal act of the authority are set by Article 8 of Law No 101/2016:

• If the estimated value of the procurement procedure is equal to or greater than the thresholds requiring contract notices to be published in the Official Journal of the European Union per the public procurement regulation, the time limit is ten days.
• If the estimated value is below these thresholds, the time limit is seven days.

According to the ANAP Activity Report, the average length of proceedings relating to a procurement claim was 29 days before the CNSC and 34 days before national courts.

According to the CNSC Annual Report, in 2022, 3,247 claims were brought before the CNSC.

No legal fee is required. The cost is based on a security to be deposited in a Romanian bank account. The amount of the security varies based on the estimated value of the contract:

• 2% of the estimated value of the contract, when the value is lower than the thresholds, but no more than RON35,000 (equivalent to EUR7,000) for complaints submitted up to the deadline for submission of tenders, and no more than RON88,000 (equivalent to EUR17,700) for complaints submitted after the deadline for submission of tenders; or
• 2% of the estimated value of the contract, when the value is equal to or greater than the thresholds, but no more than RON220,000 (equivalent to EUR44,200) for complaints submitted up to the deadline for submission of tenders, and RON2,000,000 (equivalent to EUR402,000) for complaints submitted after the deadline for submission of tenders.       

The law allows for amendments to a public procurement contract without the need for a new procurement procedure in any of the following situations:

• if there is a revision clause in the initial Award Documentation, which can also include price adjustments;
• if new services or works not included in the initial Award Documentation became necessary in the context of the project, provided that they do not exceed 50% of the initial value of the contract;
• if the amendment was unforeseeable by a diligent contracting authority, provided that it does not change the general character of the contract and does not exceed 50% of the initial value of the contract;
• if the original contractor can be replaced with another contractor, as provided for in the revision clause in the Award Documentation, or with one of its subcontractors (the original contractor is automatically substituted by its legal successor); also, the original contractor can be substituted by one of its subcontractors, who assumes the contractor’s rights and obligations under the public procurement contract; or
• if the amendment is needed, but it is not substantial; an amendment is considered to be not substantial if it meets the following conditions:
1. the amendment does not affect the fulfilment of the qualification or selection criteria regarding the application of the award criteria;
2. the amendment does not modify the price of the public procurement contract;
3. the amendment is absolutely necessary for the finalisation of the project; and
4. the amendment does not modify the purpose of the public procurement contract.

When any of these situations arise, the contracting authority and the contractor can agree on an amendment of the contract through, for example, an addendum that establishes the modifications in detail.

Apart from the special cases of termination of public procurement contracts detailed in 5.3 Prerogatives of the Awarding Authority, Law No 98/2016 does not establish the grounds on which contracts can be terminated, as the provisions of common termination grounds regulated by Romanian Civil Code apply (eg, performance of the contract, expiry of the term, fulfilment or, as the case may be, non-fulfilment of a condition, fortuitous impossibility of performance, etc).

Under Romanian public procurement regulation, contracting authorities have a number of special prerogatives, given the public nature of the contract.

Firstly, the contracting authority has the right to unilaterally terminate the contract in one of the following situations:

• if the contract is modified and the conditions for amending a public procurement contract without a new public procurement procedure are not met;
• the contractor is, at the time of the award of the contract, in one of the situations which would have led to its exclusion from the award procedure, as detailed in 2.11 Exclusion of Tenders; or
• the contract should not have been awarded to that contractor due to a serious infringement of obligations of the relevant European legislation and established by a decision of the Court of Justice of the European Union.

Secondly, the contracting authority has the right to declare a tender non-compliant, and to eliminate the economic operator from the awarding procedure, if the tender contains proposals to amend the contractual terms which the contracting authority has laid down in the award documentation, which are clearly disadvantageous to the authority, and the tenderer, despite having been informed of the situation, does not agree to waive those terms.

Lastly, the contracting authority has the right to issue documents, including during the contract period, every 90 days after the contract has been signed, which shall record at least the status of the contract and, where appropriate, any delays/deficiencies in the implementation of the contract, as well as any damage caused by the contractor’s fault. These interim documents shall have the same effect as the documents issued on completion of the contract.

In a recent case filed before the CNSC, the Council stated that the obligation of transparency prohibits the contracting authority from rejecting a tender that complies with the requirements of the documentation on grounds that were not provided for in the documentation. The CNSC also noted that even if specific activities under the contract require certain licenses or personnel qualifications, the contracting authority must explicitly request such evidence during the tender submission stage. Failure to do so means the successful tenderer must fulfil these requirements during contract execution, not at the tender stage.

An important recent decision ruled that imposing selection or qualification criteria that have a restrictive effect, such as requiring members of the team of specialists or project managers to have three years of professional experience in the public sector, is illegal. This is because it may unfairly benefit certain candidates and limit competition in the procurement process (in the case examined, two of the three tenders submitted were rejected as unacceptable).

Through a mandatory decision, the Romanian High Court of Cassation and Justice established that when reevaluation is required, the contracting authority should only consider the criteria that led to disqualification and not any additional criteria, as long as the evidence submitted shows that they have already been considered.

Another important recent decision has established that it is not legal for a contracting authority to request clarifications in order to bring changes to the selection or qualification criteria, or to artificially create additional conditions.

A draft law under consideration proposes to include the workforce of an economic operator as an evaluation factor in assessing award criteria for public procurement contracts. This consideration would be in addition to the existing criteria, which encompass technical advantages, aesthetic and functional characteristics, accessibility, the organisation, qualifications, and experience of staff appointed for contract execution, as well as after-sales services, technical assistance, and delivery conditions. The explanatory statement of the draft law highlights that its primary objective is to broaden access to the award procedure for economic operators. Particularly, it aims to assist those operators who possess the necessary workforce to perform the contract but currently do not meet the criteria to submit a tender.

Public procurement regulation undergoes frequent amendments, with the most common changes relating to adjustments of the value thresholds to account for factors such as inflation and exchange rates. Additionally, time limits and costs associated with appeals are also subject to frequent legislative changes.

Recent amendments to the public procurement regulation include increasing the value of the thresholds regulated by Article 7 of Law 98/2016, from RON26,093,012 (equivalent to EUR5,308,000) to RON27,334,460 (equivalent to EUR5,493,800) for works contracts and from RON1,042,363 (equivalent to EUR212,100) to RON1,090,812 (equivalent to EUR219,200) for products and services contracts.