New Amendment of the Romanian Public Procurement Legislation, limiting Access to the public Procurement procedures In Romania only to nationals from EU and certain states

 

In the Official Gazette no. 346 from 5 April 2021 the Emergency Government Ordinance no. 25/31 March 2021 amending and supplementing some normative acts in the field of public procurement (the “Ordinance”) was published. The novelty brought by the said modification is of utmost importance as for the first time, access to the public procurement procedures unrolled by the Romanian Contracting Authorities is limited based on the nationality of the participating entity.

 

In terms of the actual normative acts which were amended, it is to be noted that through this Ordinance amendments were brought to Law no. 98/2016 on the public procurement, Law no. 99/2016 on sectorial procurement and to Law no. 100/2016 on works concessions and service concessions. No amendments whatsoever were made to any of the methodological norms for the application of the aforementioned laws, nor to Law no. 101/2016 on remedies and appeals concerning the award of procurement contracts.

 

In this respect, given that the amendments are basically the same for all the laws in question, we will further make a brief presentation of these amendments only by reference to Law no. 98/2016:

  1. Article 3 (1) jj) was amended and now the definition of the “economic operator” provides five (5) specific categories of bidders which are allowed to submit an offer in a public procurement procedure in Romania, namely those which are established in (i) an EU Member State; (ii) a Member State of the European Economic Area (EEA); (iii) third countries which have ratified the World Trade Organisation Agreement on Government Procurement, to the extent that the awarded public procurement contract falls under the scope of annexes 1, 2, 4 and 5, 6 and 7 to the European Union’s Appendix I to the respective Agreement; (iv) third countries which are in the process of joining the European Union or in (v) third countries not covered by point (iii), but which are signatories to other international agreements by which the European Union is obliged to grant free market access in the field of public procurement.

 

  1. A new paragraph was inserted to Article 49 which reads: “To the extent that are covered by Annexes 1, 2, 4 and 5, 6 and 7 to Appendix I of the European Union’s to the GPA and other international agreements which impose obligations on the European Union, the contracting authorities shall grant the works, products, services and economic operators of the signatories to these agreements an equal treatment with the one granted to the works, products, services and economic operators from the European Union.”

 

  1. Article 53 was amended and now provides that will have the right to participate in the award procedures only those economic operators defined in Article 3 (1) jj), any other economic operator following to be excluded by the contracting authorities without any additional action or formality.

 

Moreover, the Ordinance also provides that within 30 days as of its entry into force, by joint order of the Minister of Economy, Entrepreneurship and Tourism and the President of the National Agency for Public Procurement, the list of countries falling into the newly introduced categories shall be approved, following that this list to be updated annually or whenever necessary, within 30 days as of the occurrence of any changing situation (the list was adopted on 22 April 2021 by a joint order of the Minister of Economy, Entrepreneurship and Tourism and President of the National Agency for Public Procurement consisting of 48 countries. Among which is the U.S.A., U.K., Canada, Turkey etc.). As regards the award procedures in which the economic operators already submitted their offers on the date of entry into force of this Ordinance, it is stated that these will remain subject to the legislation in force on the date of their initiation.

The list of the countries, whose nationals have access to the Romanian public procurement procedures may be found at: http://legislatie.just.ro/Public/DetaliiDocumentAfis/241945.

 

Thus, as per those stated in its introductory part, the Romanian legislator adopted the Ordinance invoking, as EU legal framework grounds, the transposition of Article 25 of Directive 2014/24/EU on public procurement and of Article 43 of Directive 2014/25/EU. But it appears that actually this Ordinance is the implementation of the Romanian legislator’s own particular interpretation of the invoked EU legislation, the latter merely stating that a no less favorable treatment will be accorded to the works, supplies, services and economic operators of the third states which signed various international agreements with EU, while the Ordinance basically imposes for the contracting authorities the legal obligation to directly exclude any economic operators which does not fall under the definition from Article 3 (1) jj), without the performance, for example, of any investigation/assessment whether an economic operator was granted with a foreign subsidy or is not able to guarantee a similar European standards in the area of labor, environment and/or security.