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Law No. 83 Of 6 October 1994

Original Language Title:  LEGE nr. 83 din 6 octombrie 1994

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LEGE No. 83 of 6 October 1994 for the approval of some Government ordinances, issued under Law no. 58/1993 on the empowerment of the Government to issue ordinances and the authorization of contracting and guaranteeing external credits, as well as the contracting of state loans
ISSUER PARLIAMENT
Published in OFFICIAL MONITOR NO. 292 of 14 October 1994



The Romanian Parliament adopts this law + Article UNIC The following Government ordinances issued pursuant to art. 1 lit. b), c), and d) of Law no. 58/1993 on the empowerment of the Government to issue ordinances and the authorization of contracting and guaranteeing external credits, as well as the contracting of some state loans: 1. Government Ordinance no. 11 11 of 4 August 1993 to amend Law no. 58/1934 on the cambia and the ticket to the order and Law no. 59/1934 on the cheque, published in the Official Gazette of Romania, Part I, no. 201 of 23 August 1993, with the following amendments: a) Article I (2) will have the following content: "" Two. Article 46 will read as follows: Article 46. -When the cambia is not presented for payment within the period fixed by art. 40, any debtor has the right to record the amount at the House of Savings and Consemnations or at another institution legally empowered to carry out such operations, at the expense and risk of the owner of the cambia, the container depositing at the court of the place of payment. " b) Article I, point 15, shall read as follows: "" 15. Paragraph 4 of Article 100 will read as follows: The divestment cannot be made by the shooter but in favor of a banking company or other credit society but will use all successive gyrations. The expression of the banking company or other credit society means the legal entities provided by the legislation on banking and credit activity. " c) Article III (17) shall read as follows "" 17. Article 75 will read as follows: Article 75. -Through the expressions of the banking company and another credit society, used in the present law, it is understood the legal entities provided by the legislation on banking and credit activity. " d) Article III (18) shall read as follows "" 18. Article 79 will read as follows: Article 79. -The circular cheque is a credit to the order, issued by a banking company or another credit company, namely authorized for amounts available to them from the recipients of the cheques at the time of the issue, payable on view in any of the places Issued by the issuer. The banking company or other credit company, authorized to issue circular cheques, must submit to the National Bank of Romania, at the latest the next day from the issuance, a bail in government securities, guaranteed by the state, or lumbardable to the Bank National of Romania, counted at the rate of 40% of the value of circular cheques issued daily, bail on which the owners of such cheques have a special privilege. The bail will not be able to be returned by the National Bank of Romania only against the presentation of the respective cheque, with the mention ACQUITTED. " e) Article III (19) shall read as follows "" 19. Paragraph 5 of paragraph 1 of Article 80 shall read as follows: 5 5. the signature of the banking company or the credit institution. ' f) Article III (20) shall read as follows "" 20. Article 82 will read as follows: The banking company or other credit company may entrust the issuance of circular cheques to a correspondent banking company, provided that the cheque issued to bear the visa of the licensed bank or credit company and the correspondent sign as a representative of that banking company or authorised credit institution. '; g) Article V will have the following content: "" Art. 5. -Within 30 days from the entry into force of this ordinance, the National Bank of Romania will issue framework rules on the trade made by banking companies and other credit companies with bills, promissory notes and cheques, as well as rules on the movement and technical and content standards of these credit and payment instruments, according to current international usages. " 2. Government Ordinance no. 12 12 of 4 August 1993 on purchases of public goods and investments, published in the Official Gazette of Romania, Part I, no. 202 of 23 August 1993, with the following amendments and additions: a) The title shall read as follows: "" Public Procurement Ordinance " b) The title of Chapter I will have the following content: " General provisions ' c) Article 1 (1) shall read as follows: " (1) This ordinance regulates all purchases made by the legal entities referred to in art. 2 lit. b). " d) Article 2 (a) shall read as follows: a) public procurement means obtaining by a procuring legal person, the final or temporary acquisition of goods by contract of purchase, hire or half-term, including services related to the provision of those goods or public investment, provided that the value of such services does not exceed the value of public goods or investments to which they correspond; ' e) Article 2 (b) will have the following content: " b) the legal persons who may make public procurement are: I. Parliament and institutions under its control; II. Presidency; III. Government and administrative authorities provided by art. 115, 120-122 of the Romanian Constitution and their subordinated budgetary institutions; IV. the judicial authorities; V. Public Ministry; VI. public institutions of higher education; VII. Romanian Academy and its subordinate institutions; " f) Article 1 (c) will have the following content: "c) the goods relate to products, equipment and other physical objects of any kind and with any description, including immovable property;" g) Article 2 e) will have the following content: "e) contractor means any natural or legal person, actual or potential partner of the procuring legal person in a public procurement contract;" h) Article 2 (f) will have the following content: "" f) public procurement contract means a contract concluded between the procuring legal person and the contractor whose tender is the winner; ' i) Article 2 (g) will have the following content: " g) the security for the tender submitted shall be the security provided to the procuring legal person by the contractor submitting an offer, whereby the latter undertakes to sign the acquisition contract where his tender is winning. The guarantee for the tender submitted may consist of bank guarantees and assimilated to them; ' j) Article 3 (1) sentence I will have the following content: " (1) The procuring legal person may ask contractors who participate in the procurement procedure, without prejudice to the right of contractors to protect their intellectual property or trade secrets, the provision of documents evidence or any information deemed to be useful and which allows it to assess that the contractors: ' k) Article 3 (2) will have the following content: " (2) Any condition established according to par. ((1) lit. a) will be entered in the pre-selection documents and, if applicable, in the specification and will apply equally to all contractors. The procuring legal person will not impose any criteria, condition or procedure regarding the qualification of contractors, other than those provided in par. ((1). ' l) Article 3 (3) will have the following content: "(3) The procuring legal person shall assess the qualification of the contractors in accordance with the criteria and procedures referred to in the preselection documents or the specifications." m) Article 3 (4) shall read as follows: "" (4) In accordance with art. 5 5 para. (1) and (3), the acquiring legal person will not establish, with regard to the qualification of the contractors, any criterion, condition or procedure that would cause discrimination between Romanian and foreign contractors. b) Also, the procuring legal person will not establish, with regard to the qualification of the contractors, any criteria, condition or procedure that would cause discrimination between the contractors representing private companies and contractors representing companies with state capital. " n) Article 3 (5) shall read as follows: "(5) The procuring legal person may disqualify a contractor at any time if he discovers that the information provided on the qualification of that contractor was false or inaccurate." o) Article 4 will have the following content: "" Art. 4. -Pre-selection procedure (1) The procuring legal person may engage in a pre-selection procedure in order to identify, prior to the sending of tenders, contractors who are able to engage in a contract of purchase, in compliance with the provisions of art. 11. Provisions of art. 3 will also apply to the preselection procedure. (. If the procuring legal person engages in the preselection procedure, he shall provide a set of pre-selection documents to each contractor requesting them, in accordance with the procedure specified and, if applicable, against a fee for sending those documents. (3) The pre-selection documents shall include at least the information set out in art. 11. (4) The procuring legal person shall make known to each contractor which has submitted a request for preselection, whether that contractor has been selected or not, the names of the contractors who have been selected; their names will be made known, on request, and public opinion. Only contractors who have been selected have the right to participate in the public procurement procedure. (5) The procuring legal person shall communicate, upon request, to contractors who have not been selected, the reasons for rejection, but shall not be obliged to provide evidence or justifications regarding the concrete facts that substantiated the rejection. (6) The procuring legal person may ask a contractor to reconfirm his/her qualification in accordance with the same criteria used for the preselection of that contractor. The procuring legal person will disqualify any contractor who fails to reconfirm his qualification and may at any time disqualify a contractor if he discovers that the information provided for the preselection or reconfirmation was false or Inaccurate. The procuring legal person will promptly make known to each contractor, who has been asked to reconfirm his qualification, whether or not the contractor has succeeded in reconfirming his qualification. " p) Article 5 will have the following content: "" Art. 5. --Participation of contractors (1) In the case of acquisition whose value exceeds an amount established by Government decision, at the proposal of the Ministry of Finance and the Ministry of Public Works and Spatial Planning, the contractors may participate in the procurement procedure, regardless of nationality, given that Romanian contractors enjoy a similar treatment in the procurement procedures organized by the acquiring legal entities from the countries whose nationality the foreign contractor has. (2) When the value of the purchase is less than the amount referred to in par. (1), access to the procurement procedure is allowed only to Romanian contractors, except in the cases mentioned in par. ((3). (3) If the Romanian contractors cannot satisfy the requirements set out in the specification, the procuring legal person shall be empowered to invite to the procurement procedure and foreign contractors regardless of nationality, even if the value the purchase contract is less than the amount referred to in par. ((1). The acquiring legal entity will include in the procurement file a justification of the reasons and circumstances on the basis of which the decision to admit the participation of foreign contractors was taken. (4) The acquiring legal entity shall specify, even from the moment when it requests the participation of the contractors to the procurement procedure, that they may participate in that procedure, regardless of nationality, in accordance with par. (1) or (3) or that participation is allowed only to Romanian contractors, according to par. ((2), as appropriate. This specification may not be amended later. ' r) Article 6 will have the following content: "" Art. 6. -Forms of communication (1) Documents, notifications, decisions and other communications, referred to in this ordinance and which must be sent by the procuring legal person to the contractor or by the contractor to the acquiring legal entity, shall be made in written form or in any other form that ensures the registration of the act, except for the offer whose form will be that provided by the regulations of art. 11. (2) As an exception to par. ((1), communications between contractors and the procuring legal person may be made by telephone or by any other means of communication which do not ensure the recording of the content of the communication, provided that immediately thereafter the sender of the communication send a confirmation of this communication in a form that ensures its registration. (3) The procuring legal person shall not discriminate between contractors in terms of the form in which they transmit or receive documents, notifications, decisions or other communications. " s) Article 7 will have the following content: "" Art. 7. -Rules on documents provided by contractors When requiring the legalization of documents provided by contractors to demonstrate their capacity to participate in the procurement procedure, the procuring legal person cannot impose any condition on the legalization of documents, other than those required by the legislation in force at the time. " t) Article 8 will have the following content: "" Art. 8. -The procurement procedure file (1) The acquiring legal entity will prepare a file of the procurement procedure, which will contain the information provided in art. 11. ((2) Contractors may claim compensation for the expenses they incurred for participating in the procurement procedure if the procuring legal person failed to prepare a file of the procurement procedure in the compliance with this Article. '; u) Article 9 will have the following content: "" Art. 9. -Rejection of contractors who paid bribes The procuring legal person will reject the offer, the proposal or the price offer, if the contractor who submitted it has committed the crime of bribery, influence peddling and receiving undue benefit from any prepus of the the procuring legal person. ' v) Article 10 will have the following content: "" Art. 10. -Circumstances of use of the tender The procuring legal person will operate only on the basis of the tender procedure, except in the cases provided for by this ordinance. The amounts from which it is necessary to organize a tender procedure will be established and updated by Government decisions, at the proposal of the Ministry of Finance and the Ministry of Public Works and Spatial Planning. It is forbidden to divide the purchase contract into several smaller value contracts in order to avoid the organization of a tender procedure. " x) Article 12 (1) shall read as follows: "(1) For the proper conduct of the auction activity the procuring legal person shall appoint by decision, for each purchase of goods and public investment in part, a commission for the tender." z) Article 12 (3) shall read as follows: " (3) The tendering commission shall be composed of at least 5 members and shall include: -the chairman of the committee which is usually a specialist of the acquiring legal person; -the Ministry of Finance representative -representative of the Ministry of Public Works and Spatial Planning, only in cases of public investment procurement; -other representatives, as members of the tender committee, who will be specialists with professional experience in the field of public procurement and with moral probity. " a) Article 12 (4) will have the following content: "(4) The fees of the participants in the tender committee, which are not the permanent employees of the acquiring legal person, shall be borne by the procuring legal person." b) Article 14 shall read as follows: "" Art. 14. -Acquisition by the request for price offers The procuring legal person may engage in a procurement procedure by request of price offers, according to art. 15, for the purchase of goods immediately available, which are not produced according to the specifications of the acquiring legal person and for which there is an established market, provided that the estimated value of the purchase contract is lower than the amount provided for in the procurement regulations for the organization of an auction c) Article 15 will have the following content: "" Art. 15. -Procedure of the request for price offers (1) The procuring legal person will ask for price offers from as many contractors as possible, but at least from three, as far as possible. Each contractor will be required to detail the price on component elements, leaving the structure that best suits the valuation needs of the acquiring legal entity. (2) Each contractor is allowed to propose only one price offer and cannot change the price offer proposal. There will be no negotiations between the procuring legal person and a contractor on the price offer proposed by the contractor. (3) The purchase contract will be concluded with the contractor who offered the lowest price relative to the needs of the acquiring legal entity. " d) Article 16 will have the following content: "" Art. 16. -The circumstances of using the purchase from a single source. The procuring legal person may acquire public goods or investments by applying for a proposal or price offer to a single contractor in the following circumstances: a) public goods or investments can only be provided by a single contractor who has exclusive rights in respect of public goods or investments to be acquired, such as special artistic works and works under the protection of rights by author; b) due to force majeure (natural calamities, conflagrations, etc.) that make it impossible to apply the public tender procedure; c) the procuring legal person who has purchased goods, equipment or technology from a particular contractor decides that a number of additional elements must be purchased from the same contractor for standardisation reasons or because it is necessary compatibility with the goods, equipment or technology already acquired, taking into account the efficiency of the initial acquisition in terms of meeting the needs of the procuring legal person, the restricted size of that acquisition in ratio with initial purchase, reasonable price and non-existence of an alternative on the purchase of the goods in question; also public investments which can only be made by the original supplier or entrepreneur of the work; d) the procuring legal person seeks to conclude a contract with a contractor for the purpose of undertaking research, experimentation, studies or technological developments, aiming at the acquisition of a prototype, unless the contract include the production of goods in quantities that create a commercial profit, or cover the costs of research and development. " e) Article 17 will have the following content: "" Art. 17. --Justifying the choice of procurement methods The procuring legal person using one of the procurement methods referred to in art. 16 16 will include in the acquisition file a justifying note approved by the head of the acquiring legal entity on the reasons and circumstances on which it was based to choose the respective method of acquisition, together with the opinion of the Ministry Finance, in the case of the purchase of goods, and with the joint opinion of the Ministry of Finance and the Ministry of Public Works and Spatial Planning, for public investment procurement. " f) Article 18 (b) will have the following content: "b) the acquisition of profits by investors or the acquiring legal person, by selling the auction documents at prices higher than the cost of multiplying these documents;" g) Article 20 will have the following content: "" Art. 20. -Right to appeal (1) Any contractor who participates or wishes to participate in a procurement procedure in accordance with this ordinance and who considers that he is suffering, that he risks suffering or has suffered injury due to an act or decision of the person legal acquirer or the procedure used by it, in violation of a provision of this ordinance, may submit an appeal against the act, decision or procedure. (2) It will not be possible to appeal based on the provisions of par. ((1) against: a) the acts, decisions or procedures followed by the procuring legal person regarding the selection of a procurement method; b) admission, according to art. 5 5 para. (2), to the procurement procedure only of Romanian contractors; c) the limitation of the call for tenders for reasons of economy and efficiency; d) the choice by the procuring legal person of the tender form; e) a decision to reject all offers made by the acquiring legal person prior to the acceptance of an offer. " h) Article 21 will have the following content: "" Art. 21. -Appeal submitted to the head of the acquiring legal entity (1) Any contractor participating in the procurement procedure may submit a written appeal to the head of the acquiring legal entity within 7 days from the date on which the contractor who submits it became aware of the decision of adjudication. (2) If the appeal is not amicably resolved by the contractor who submitted it and the acquiring legal person, the head of the acquiring legal person to whom the appeal was handed will take a written decision within the period. days from the date of registration of that appeal, with the opinion of the Ministry of Finance, as well as of the Ministry of Public Works and Spatial Planning for public investment procurement. The decision will be notified immediately to the contractor who submitted the appeal. The notification will also state the reasons for the adoption of that decision and will indicate the corrective measures to be taken if the appeal is accepted in part or in full. The decision can be appealed in accordance with art. 24. (3) If the head of the acquiring legal person to whom the appeal was handed does not take a decision within the period specified in par. (2), the contractor who submitted that appeal has the right to bring legal action in accordance with art. 24 24. " i) Article 22 will have the following content: "" Art. 22. -Rules applicable to the appeal submitted according to art. 21 (1) Immediately after an appeal has been submitted according to art. 21, the head of the acquiring legal entity will notify the winner of the appeal and its content. (2) A copy of the decision of the head of the acquiring legal entity will be sent immediately to the contractor who submitted to the acquiring legal entity that appeal, as well as to the contractor whose offer was the winner. After the decision has been issued, the appeal and the corresponding decision will, immediately, be made available to any interested person, provided that no information is disclosed, if its disclosure were contrary to the law, would prevent the application. the law, would affect the public interest, would prejudice the legitimate commercial interest of the parties or affect the free competition. " j) Article 23 will have the following content: "" Art. 23. -Suspension of the procurement procedure (1) The acquiring legal person may include in the purchase contract a suspension clause, by virtue of which the head of the acquiring legal entity may suspend for no more than 30 days the performance of the purchase contract in order to protect the rights of the contractor submitting the appeal. ((2) Any decision taken by the procuring legal person in accordance with the provisions of this Article, as well as the reasons and circumstances that led to the taking of that decision will be included in the procurement file. " k) Article 24 will have the following content: "" Art. 24. --The deadline for the introduction of legal action The legal action will be brought within 10 days from the date of communication of the decision adopted by the head of the acquiring legal person or from the expiry of the 10-day period in which the head of the acquiring legal person must take that decision. ' i) Article 25 (1) shall read as follows: " (1) The contractor who commits, he or his prepusii, any offence or contravention to this ordinance shall be included on a special list held by the Ministry of Finance and the Ministry of Public Works and Spatial Planning for public investments, having the prohibition to enter into a public procurement contract for a period of 5 years from the date of final stay of the sentencing decision or the contravention sanction act. The Ministry of Finance and the Ministry of Public Works and Spatial Planning will decide to include on the prohibition list, the complaint of the procuring legal person or the control body that has ex officio the obligation of the complaint. " m) Article 27 will have the following content: "" Art. 27. -To the extent that this ordinance contradicts the obligations assumed by Romania through treaties or international agreements, ratified by law, their provisions will prevail. " n) Article 28 shall read as follows: "" Art. 28. -The admission to financing of purchases of public goods and investments will be made on the basis of the public procurement contract concluded by the acquiring legal entity with the winning contractor of the tender. " o) Article 31 will have the following content: "" Art. 31. -On the date of entry into force of this Ordinance, any contrary provisions shall be repealed. ' 3. Government Ordinance no. 17 17 of 20 August 1993 on the establishment and sanctioning of contraventions to financial-management and fiscal regulations, published in the Official Gazette of Romania, Part I, no. 205 205 of 25 August 1993. 4. Government Ordinance no. 18 18 of 20 August 1993 on the regulation of non-stock exchange transactions with securities and the organization of intermediation institutions, published in the Official Gazette of Romania, Part I, no. 206 206 of 26 August 1993. 5. Government Ordinance no. 23 23 of 25 August 1993 on certain measures for the recovery and resolution of cases of inability to pay economic agents, published in the Official Gazette of Romania, Part I, no. 209 209 of 30 August 1993. 6. Government Ordinance no. 24 24 of 25 August 1993 on the regulation of the establishment and operation of open investment funds and investment companies as financial intermediation institutions, published in the Official Gazette of Romania, Part I, no. 210 210 of 30 August 1993. 7. Government Ordinance no. 25 25 of 25 August 1993 on stimulating small and medium-sized enterprises, published in the Official Gazette of Romania, Part I, no. 210 of 30 August 1993, with the following amendments: a) Article 1 will have the following content: "" Art. 1. -The state supports the establishment and development of small and medium-sized enterprises, ensuring in their favor a system of advantages and facilities, in order to promote productive activities in the fields of industry, construction, tourism, services with added value, research and development and design. " b) Article 3 (1) (a) will have the following content: "" a) a number of up to 25 employees for the small business. " c) Article 4 will have the following content: "" Art. 4. -Small and medium-sized enterprises benefit from information, assistance and consultancy services, provided free of charge or with tariff reductions, for the purpose of carrying out and developing their activity. " d) Article 13 will have the following content: "" Art. 13. -It is prohibited to discriminate against small and medium-sized enterprises in access to the resources of raw materials, materials and fuels, energy, as well as for the supply of machinery, equipment, spare parts and services provided by autonomous regions and companies. " e) Article 14 shall read as follows: "" Art. 14. -The government ensures non-discriminatory access of small and medium-sized enterprises to purchases of public goods and investments, under the law. " f) Article 15 shall read as follows: "" Art. 15. -The government supports the subcontracting by small and medium-sized enterprises of the manufacture of goods components and service supplies, by developing a specific methodology on subcontracting activities. " g) Article 16 (1) shall read as follows: "Small and medium-sized enterprises are encouraged to develop export activity." h) Article 16 (2) (a) will have the following content: a) the facility of access to information on foreign markets and international trade. " i) Article 18 (b) will have the following content: "b) the application of an advantageous system for the acquisition and use of assets not used or become available through restructuring, belonging to companies with state capital;" j) The title of Chapter IX will have the following content: "Bodies to support small and medium-sized enterprises" k) Article 20 will have the following content: "" Art. 20. -Support and development of small and medium-sized enterprises can be carried out by specialized bodies of central public administration, foundations, associations and other non-governmental organizations. " l) Article 21, paragraph 2, sentence I will have the following: "In carrying out its function, the Romanian Development Agency has the following main tasks." m) Article 21 (2) (c) will have the following content: " c) collaborate with ministries, other specialized bodies of the central public administration and local public administration authorities, as well as with non-governmental organizations and economic agents, in order to create a favorable framework development of small and medium-sized enterprises n) Article 21 (2) (f) shall read as follows: "f) organise selections of small and medium-sized enterprises which are likely to benefit from special programmes on the basis of performance criteria;" o) Article 23 (1) shall read as follows: "Small and medium-sized enterprises may constitute associations of representation under the law." The ordinance will be republished in the Official Gazette of Romania, Part I. 8. Government Ordinance no. 5 5 of 23 July 1993 on the resolution of cases of impossibility of payment of some economic agents, by applying the deduction regime provided by Government Ordinance no. 3/1992 approved by Law no. 130/1992, on some products exempt from value added tax, published in the Official Gazette of Romania, Part I, no. 183 183 of 30 July 1993. This law was adopted by the Chamber of Deputies at the meeting of September 19, 1994, in compliance with the provisions of 74 74 para. (2) of the Romanian Constitution. CHAMBER OF DEPUTIES PRESIDENT ADRIAN NASTASE This law was adopted by the Senate at the meeting of September 19, 1994, in compliance with the provisions of art 74 74 para. (2) of the Romanian Constitution. SENATE PRESIDENT prof. univ. dr. OLIVIU GHERMAN -----------------------