PPP Research Center

 Romanian Public-Private Partnership Law Review

No. 16 / 2016

TABLE OF CONTENTS: 

The cooperation of the contracting authority with potential tenderers for drafting of the contract award documentation - 2nd part -
by Monica Amalia Rațiu, PhD, Associate professor, Faculty of Law, University of Bucharest

The parties' obligations in the procedure for the resolution of complaints before the administrative jurisdiction
by Florentina Drăgan, PhD

Is the efficient use of public funds a main objective of the public procurement policy?
by Marilena Ene, PhD, Lawyer, Bucharest Bar Association

New Rules, Old Stories: Modification of Public Contracts - 2nd part -
by Simona Gherghina, PhD, Professor, Faculty of Law, University of Bucharest


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The cooperation of the contracting authority with potential tenderers for
drafting of the contract award documentation
- 2nd part -

Monica Amalia Rațiu, PhD
Associate professor
Faculty of Law
University of Bucharest

Distorting competition through the prior cooperation between the contracting authority and potential bidders for the preparation of the award procedure

Abstract:

The existence of a practice consisting in a certain collaboration between the contracting authority and potential bidders, or persons who relate to potential bidders, at the preparation stage of the award procedure for a public procurement contract was ascertained at legislative level since the adoption of Council Decision 94/800/CEfor the approval of the World Trade Organization public procurement agreement. The following was mentioned at article VI (4) of the Agreement: „A procuring entity shall not seek or accept, in a manner that would have the effect of precluding competition, advice that may be used in the preparation or adoption of any technical specification for a specific procurement from a person that may have a commercial interest in the procurement". The mentioned paragraph thus enshrined the recognition of a rule according to which seeking and receiving advice, directly or indirectly, by the contracting authority, from potential bidders for the drafting of the award documents is allowed only when such a relation does not preclude competition.


The principle was also adopted three years later in the public procurement directives, along with other provisions, following the amendments introduced by the European Parliament and Council Directive 97/52/EC amending directives 92/50/EEC, 93/36/EEC and 93/37/EEC concerning the coordination of procedures for the award of public service contracts, public supply contracts and public works contracts respectively, which at recital (10) of the preamble mentions the following: „Whereas contracting authorities may seek or accept advice which may be used in the preparation of specifications for a specific procurement, provided that such advice does not have the effect of precluding competition".

The generation of directives in force, the classic directive and the utilities directive, regulates in detail the possibilities of interacting between contracting authority and potential bidders for the drafting of the award procedure, legal mechanisms also adopted by Law nr. 98/2016 on public procurement, and by Law nr. 99/2016 on sectoral procurement.

At the present moment, the possibility of prior networking between a contracting authority and a potential bidder (including persons who have certain relations with a potential bidder) is, undoubtedly, recognized both by legislation and case law.

However, it is important to notice the thin line which separates networking within the limits provided by the law from a prior collaboration which alters competition and regarding which remedial measures are not taken or, according to the case, the removal from the procedure of the favoured bidder is not decided, if remedial measures are not possible. In an equal measure it is important to observe that simply not adopting neutralizing measures regarding a bidder's advantage is not synonymous with perpetrating acts of corruption, in the absence of additional elements which circumstantiate such acts, like obtaining benefits, by the representatives of the contracting authority, in different forms and at different moments, to favour a bidder to the detriment of another. Ascertaining the distortion of competition through prior collaboration is, in all cases, reason to cancel the award procedure and/or public procurement contract.

Keywords: public procurement, advice during the preparation of the award procedure, competition distortion, inherent de facto advantage, relevant information, remedial measures, exclusion from the award procedure.

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The parties' obligations in the procedure for the resolution of complaints
before the administrative jurisdiction


Florentina Drăgan, PhD

„fundamentum autem est iustitiae fides,
id est dictorum conventorumque constantia et veritas"

Abstract:

The complainant and the contracting authority are the „characters" that trigger and maintain the complaints in administrative jurisdiction, in the framework of an award procedure against acts issued in breach of the provisions on public/sectoral procurement or concessions; thus, the legislator, by establishing obligations for which they are responsible, in the framework of this procedure, it was attempted to maintain procedural discipline.

Keywords: public procurement, complainant, contracting authority, intervener, common obligations of the parties, the complainant's obligations, the contracting party's obligations, the intervener's obligations, administrative jurisdiction


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Is the efficient use of public funds a main objective of the public procurement policy?

Marilena Ene, PhD
Lawyer
Bucharest Bar Association

Abstract:

The efficient use of public funds is a principle whose transposition in the public procurement legislation generated interesting debates in European doctrine. We considered it useful, for national doctrine, to initiate this discussion which can ultimately lead to crystallize a useful point of view for public entities which are controlled by the Court of Auditors. It is already mentioned in national doctrine that contracting authorities cannot have as a main objective acquiring the cheapest goods, services or works, but they must contribute to creating jobs and economic growth, as mentioned in the EU regulations. From national practice, it was observed that acquiring the cheapest good, service or work may lead to situations where the public entity must cancel the public procurement contract or it must conclude a new contract, because the quality standards are not met. It is important to clarify the way in which principles specific to public procurement bond with the principle of efficient use of public funds.

This article only opens the „Pandora's Box", without exhausting the subject, which requires a careful analysis at national legislation level in correlation with EU legislation.

Keywords: public entity, public funds, efficient use, economy, efficiency, effectiveness, public procurement.

 

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New Rules, Old Stories: Modification of Public Contracts
- 2nd part -

Simona Gherghina, Phd
University Professor
Faculty of Law
University of Bucharest

Abstract:

The regulation by Directive 24/2014 of the modification of the public procurement contract transposes a rich case law of the Court of Justice of the European Union, which retains its relevance for the interpretation of norms and realizes a complex structure of principles and rules, complexity which is amplified by the transposition in Romanian law, along with the adding of specific national rules. The modification of the public procurement contract can be considered one of the most complex legal institutions in European law. In these conditions, the analysis of this legal structure and of its practical implications is necessary in order to determine interpretation lines capable of guiding and offering solutions.

Keywords: public procurement, contract modification, transparency, equality of treatment.