Important Developments In Public Procurement Legislation

• Law Firm: Schoenherr Attorneys at Law
• Subject Matter: Government, Public Sector, Government Contracts, Procurement & PPP
• Author: Mihai Băicoianu
• Published date: 09 May 2023

The Romanian public and sectoral procurement legislation has recently undergone several important changes aimed at clarifying certain provisions that used to be open to interpretation and/or have given rise to disputes in practice. The legislative novelties were introduced by the recently adopted Government Decision No. 336/19.04.2023, which amends the methodological rules for the application of the primary legislation governing these areas.

The main amendments to the methodological rules for the application of Law No. 98/2016 on public procurement ("Methodological Rules") are as follows:

• Contract value. The new rules introduce an obligation for contracting authorities to calculate the estimated value of a tender based on the total value to be paid, without VAT considering any possible forms of options and contract extensions explicitly provided for in the procurement documents. The contract notice must now contain an estimate of the maximum value of the framework agreement.
  
• Choice of the type of award procedure. How contracting authorities choose the award procedure has been clarified. Thus, the legislative framework is made more supple by partially repealing the earlier provisions that established the manner of choosing the award procedure based on several prescribed considerations; in the case of public works or service contracts for the implementation of new public investment objectives or intervention works on existing ones.
  
  Another considerable novelty is the clarification of the inapplicability of the negotiation without prior publication following the rescission, resolution, unilateral termination or early termination of public procurement contracts for trans-European transport infrastructure projects. Thus, the government indirectly establishes that these causes do not meet the conditions for applying the negotiation without prior publication procedure.
  
• Procurement of products with an environmental impact. By introducing a new annex to the Methodological Rules, the categories of products with life-cycle environmental impact are defined (e.g. food, textiles, copy paper, furniture computers, imaging equipment, electrical and electronic equipment used in the healthcare sector, etc.). For the procurement of these products, the "best quality-price ratio" or "best quality-cost ratio" criterion will be used, with a maximum weighting of 40 % allocated to the "price" factor. It will be interesting to see what effect this change will have in...