Public Procurement And Self-cleaning Of Cartel Members

• Published date: 08 September 2020
• Subject Matter: Anti-trust/Competition Law, Government, Public Sector, Antitrust, EU Competition , Cartels, Monopolies, Government Contracts, Procurement & PPP
• Law Firm: Schoenherr Attorneys at Law
• Author: Ms Valerie Stropșa and Darius Trusculete

In Romania, companies that commit severe professional misconduct are excluded from participation in public procurement procedures Yet, these companies have received some good news recently thanks to a common opinion issued by the Romanian National Agency for Public Procurement ("ANAP") and the national Competition Council (the "Common Opinion"). In this article we analyse the clarifications introduced by the Common Opinion on how self-cleaning can be achieved by blacklisted companies.

Context

The Romanian legislation on public procurement, utilities procurement and works/services concessions regulates a series of mandatory grounds for exclusion meant to protect contracting authorities/entities from participating in public procurement tenders and, subsequently, the awarding of contracts to companies whose performance in previous tenders/contracts was suboptimal or whose actions may raise suspicions about their integrity.

Among these cases are situations in which companies have committed severe professional misconduct that casts doubt on their integrity, i.e. violations of competition law regarding cartels aimed at bid rigging. The current legislation mandates that these violations be acknowledged by adequate means of proof, such as a decision of a court or administrative authority.

Exclusion based on this ground operates for a three-year term with important consequences on the activity of the companies concerned. To ensure the proportionality of the exclusion measure in relation to each company having committed such deeds, the relevant legislation establishes the possibility of "self-cleaning" through concrete measures taken in order to prove credibility.

The legislation establishes that to be considered as acceptable proof the following measures must be analysed on a case-by-case basis: active cooperation with competent authorities reorganisation measures, implementation of control systems etc.

Clarifications introduced by the Common Opinion

Given the general character of these provisions, the Common Opinion clarifies the concrete measures taken in the area of competition that contracting authorities/entities may consider in assessing the exclusion of a company from a public procurement.

According to the Common Opinion, these are decisions issued by the Competition Council (in the last three years) by which it is acknowledged that a more favourable sanctions regime is applied due to: (i) the application of clemency policies or (ii) the admission that...