The amendments to public procurement law

The most important amendments brought by the law 278/2010 on the approval of  emergency government ordinance 76/2010 amending and suplementing ordinance no. 34/2006 on public acquisitions contracts, works concession contracts and services concession contracts:

I. The definition of public acquisition contract

  • The public acquisition contract is defined as a commercial contract which includes the sectorial contract category also, for a valuable consideration, signed between one or more contracting authorities, on one hand, and one or more economic operators, on the other hand , with the purpose of works execution, provision of products or services.

II. Settlement of Complaints

  • An important change is the fact that people who consider themselves prejudiced by the breach of the public acquisitions law can not choose anymore between the administrative -jurisdictional way and the legal action, the only way being to appeal before the National Council for Settlement of Complaints.
  • Before addressing the Council the prejudiced person has to notify the contracting authority about the alleged violation of legal provisions on public  acquisition and the intention to notify the Council. Lack of such notification does not hinder the application before the Council.
  • The notification does not have the legal effect to suspend the assigning procedure.
  • If the prejudiced person considers that the measures taken are sufficient to remedy the alleged violations , the contracting authority shall receive a notice of waiver of right to submit an appeal before the Council or a request for waiver of the appeal proceedings.
  • If an appeal has been made and the person has not withdraw the appeal, the contracting authority has the right to conclude the contract only after the Council’s decision is taken.

III. Measures taken by the court

  • In justified  cases, in order  to prevent imminent damage, until the resolution of  the merits, the court may dispose at the interested party’s request, through a grounded judgment, with the  summoning of the parties, the suspension of execution of the contract.
  • The judgment of the first instance may be appealed within five days from the date it is communicated to the parties. The appeal shall be judged by the commercial division of the Court of Appeal.

IV. Contraventions

  • Notwithstanding the provisions of the Government Ordinance No. 2/2001 concerning the legal status of contraventions, the complaints made against the finding and punishment minutes of offenses concluded by the persons empowered within the ANRMAP will be solved by the Bucharest District 1 Court.