Articles

Amendments to the public procurement regime

11 August 2006 (Insight)

The legal framework applicable to public procurement has been subject to a process of alignment to the aquis communautaire, following the steps described in the Strategy for the reform of the public procurement system.

Latest amendments continue this process, dealing mainly with (i) restructuring of the central and local institutional framework, (ii) integration of general public procurement into the electronic public procurement system, (iii) amendments to the procedure for awarding contracts, selection criteria and evaluation methods, (iv) cases where the reconsideration of the price under on-going contracts is allowed, indexation with the inflation rate not being permitted any longer, but only adjustments determined by exceptional circumstances, (v) increase of the maximum ceiling for direct procurement (vi) improvement of competition and transparency in the procedures for awarding the public procurement contract.

The competent authorities are: (i) Ministry of Public Finance responsible for checking the procedures for awarding the public procurement contracts (ii) National Authority for Regulating and Monitoring Public Procurement, (iii) National Council for Settlement as body with administrative-jurisdictional duties, (iv) courts which control the legality of the Council decisions and settle the claims for the recovery of damages.

In order to ensure the implementation of the new regulations certain material principles, such as decisional transparency and competition have been detailed.

Decisional transparency involves (i) information exchange between the competent national authorities, between authorities and undertakings within the awarding procedure and, after January 1, 2007 between national authorities and the European Commission, (ii) mandatory publication of the participation intent and awarding announcements in the cases provided by law in the Official Gazette and optionally in the Official Journal of the European Union until December 31 2006; subsequent to this date shall also be mandatory the publication in the Official Journal of the European Union and the transmission of the announcements to be published to the operator of the public procurement electronic system, (iii) access of the interested persons, according to the provisions of the legal regulations on free access to information, to the procurement file considered as public document, except where the information is classified or protected by an intellectual property right.

The free competition is mainly observed by (i) ensuring free access to awarding procedures of public procurement contracts, (ii) setting objective criteria for public procurement selection and awarding, while imposing restrictive qualitative criteria shall qualify as anti-competitive practice pursuant to competition legal provisions.