Law No. 337 On 17 July 2006

Original Language Title:  LEGE nr. 337 din 17 iulie 2006

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Law No. 337 on 17 July 2006 (* updated *) approving Government Emergency Ordinance nr. 34/2006 relating to the awarding of contracts for procurement, concession contracts for public works contracts and concession (updated until 1 august 2006 *)-PARLIAMENT ISSUING — — — — — — — — — — — —-*) original text was published in MONITORUL OFICIAL nr. 625 of 20 July 2006. This is the updated form of S.C. "territorial Center of Electronic Computing" Piatra Neamţ, until 1 august 2006, as amended by CORRECTION No. 337 on 17 July 2006.
Romanian Parliament adopts this law.


The sole article approving Government Emergency Ordinance nr. 34 of 19 April 2006 concerning the award of contracts for procurement, concession contracts for public works contracts and concession services, published in the Official Gazette of Romania, part I, no. 418 of 15 May 2006, with the following amendments and supplements: 1. Article 1 shall read as follows: Art. 1.-This emergency Ordinance regulates the procedures for the award of the contract to tender, the contract for the concession of public works and the concession contract, as well as ways of solving the complaints brought against acts issued in connection with these proceedings. "
2. In article 2, subparagraph (f)) of paragraph (2) shall read as follows: "(f) effectiveness of the use of public funds);".
3. Article 3 shall read as follows: Art. 3.-for the purposes of this emergency Ordinance, the terms and expressions below have the following meanings: (a) acceptance of the bid-winning) legal document whereby the contracting authority manifests the agreement to engage in legal tender contract to be signed with the bidder whose bid was winning;
  

b) framework agreement-a written understanding that occurs between one or more Contracting authorities and one or more economic operators, the purpose of which is to establish the essential elements/conditions will govern public contracts to be awarded in a given period, in particular with regard to price and, where appropriate, the quantities envisaged;
  

c) candidate-any economic operator who has submitted his candidacy in the event of a restricted tender procedure, competitive dialogue or negotiated;
  

d) candidate-documents demonstrate a candidate's personal situation, ability to pursue the professional activity, the economic and financial situation, technical and professional capacity, in order to obtain the invitation of invitation for submission of the tender, in the case of a restricted tender procedure, competitive dialogue or negotiated;
  

e) competitor-any economic operator who has submitted a project within a solution;
  

f) tendering contract-contract which includes sectoral and category of contract as defined in article 10. 229 paragraph 2. (2) for consideration, concluded in writing between one or more Contracting authorities, on the one hand, and one or more economic operators, on the other hand, having as their object the execution of works, the supply of products or the provision of services within the meaning of this emergency Ordinance;
  

g) concession contract for public works-contract which has the same characteristics as the contract works, except that the counterpart of works performed by the contractor, as the concessionaire, is receiving on the part of the contracting authority, as the write, the right to exploit the work result for a specified period or that right together with payment of a predetermined amount of money;
  

h) concession contract service contract which has the same features as the services contract, except that the counterparty services contractor, as the concessionaire, is receiving on the part of the contracting authority, as the write, the right to exploit the services for a specified period or that right together with payment of a predetermined amount of money;
  

I contracting-tenderer) became, in accordance with the law, part in a procurement contract;
  

j) award documentation-documentation containing all information relating to the subject-matter of the contract tender and award procedure, including its specification or, where applicable, descriptive documentation;
  

k) special or exclusive right-a right which arises from any form of authorisation, in accordance with the provisions laid down by law or as a result of the issuance of administrative acts, by a competent authority and which have the effect of reserving the conduct of activities in the field of public services only by one or a limited number of people, substantially affect the ability of other people to engage in such activity;
  

l) public funds the allocated amounts from local budgets. 1 (1). (2) of law No. 500/2002 concerning public finances, with subsequent amendments;
  

m) public undertaking-legal person which conducts economic activities and over which it exercises, directly or indirectly, as a result of ownership, financial holdings or the specific rules laid down in the Act of establishment of the undertaking concerned, the dominant influence of a contracting authority as defined in article 10. 8 lit. a), b) or (c)); presumption of exercise of dominant influence shall apply in any situation in which, in relation to such person, whether one or more Contracting authorities as defined in article 2. 8 lit. a), b) or c) is located directly in times indirectly, at least one of the following cases:-hold the majority of the subscribed capital;
-control the majority of the votes in the governing body, such as the General Assembly.
-can appoint members of the Board of Directors, of the management organ or of the supervisory more than half the number of its members;

n) electronic auction-repetitive process achieved after an initial full evaluation of the tenders, in which bidders may exclusively by electronic means, to cut prices and/or to improve other elements of the offer; the final evaluation should be done automatically through electronic means;
  

an electronic use)-electronic equipment for the processing and storage of data which is distributed, transmitted and received by wire, radio, optical means or by other electromagnetic means;
  

p) Bidder-any economic operator who has submitted the tender;
  

q-legal tender Act) whereby the operator manifests the will to engage legally in a legal contract tendering; the offer includes a proposal from a technical and financial proposal;
  

r) economic operator-any product vendor, service provider executing times works-natural/legal person, whether governed by public or by private law, or group of persons working in the area that offer legitimate way to market the products, services and/or the execution of works;
  

s) provider of electronic public procurement-a legal person governed by public law that provides contracting authorities with technical support designed for application by electronic means, the procurement procedures;
  

Academy of Sciences) award procedure-steps to be followed by the contracting authority and the bidders for candidates/as consent of the parties in the contract of employment procurement to be considered valid; procedures for the award are: open, auction, auction competitive dialogue, negotiation, request for bids, the solutions;
  

t) financial proposal-part of the offer, including the information regarding the price, tariff, other appropriate commercial and financial conditions for meeting the requirements requested by the award;
  

HOL) technical proposal-part of the bid drawn up on the basis of the requirements of the specifications, or, where applicable, descriptive documentation;
  

u) "writing" or "in writing"-any combination of words or figures which can be read, reproduced and then releases. This ensemble may include information transmitted and stored by electronic means;
  

v) electronic procurement-SEAP computer system designates public utility, accessible through the internet address dedicated to be used for the purposes of electronic procedures for the award of the contract;
  

x) Treaty-the Treaty establishing the European Community, concluded on March 25, 1957, as amended and supplemented;
  

y) common procurement vocabulary CPV nomenclature reference-designating the applicable public procurement contracts as adopted by Regulation No 17. 2.195/2002/EC of the European Parliament and of the Council on the common procurement vocabulary, published in the official journal of the European Union no. L 340 of 16 December 2002, by ensuring the correspondence with the other existing nomenclatures;
  

z) days-calendar days, except in cases in which it is mentioned that are working days. "
  


4. In chapter I, section 3 title-to insert a new article, article 3 ^ 1 with the following content: "Art. 3 ^ 1. -Public procurement contracts are: a) works contracts;
  

b) supply contracts;
  

c) service contracts. "
  

5. In article 4, subparagraph (c)) of paragraph (1) shall read as follows: "(c)) or the realisation by whatever means of a building that meets the need and objectives of the contracting authority, to the extent that these do not correspond to the provisions of subparagraph (a). the a and b)). "
6. In article 5, paragraph (2) shall read as follows: "(2) the public procurement contract which has as its main supply of products and, operations/installation and commissioning is deemed supply."
7. In article 6, paragraph (1) shall read as follows: Art. 6. — (1) the contract of services is that the public procurement contract other than a contract of work or for the provision, which aims at the provision of one or more services, as these are provided in the appendices. 2A and 2B. "
8. In article 9, point c) shall read as follows: "c) tendering contract award by an economic operator, where the contract is funded/subsidised directly by more than 50%, by the contracting authority;".
9. In article 12, subparagraph (b)) shall read as follows: "(b) fulfilment of the contract) requires the imposition of special security measures for the protection of national interests, according to the legal provisions in force;".
10. In article 12, point c) is repealed.
11. In article 13, paragraph a) shall read as follows: "the purpose of) purchase or rental, by whatever financial means, of land, existing buildings, or other immovable property ownership rights. Financial service contracts ending, whatever its form, in relation to the contract of purchase or lease, subject to the provisions of this Ordinance; ".
12. In article 14, subparagraph (c)) of paragraph (1) and (2) shall read as follows: "(c) the application of a specific procedure) of bodies and institutions.

(2) contracting authorities are required to inform the national authority for the regulation and monitoring of public procurement on the agreements referred to in paragraph 1. (1) (a). a), existing in their field of activity. "
  

13. In article 15, paragraph (1) shall read as follows: Art. 15. — (1) this emergency Ordinance shall not apply to contracts of services of another contracting authority or to an Association of contracting authorities, where they shall enjoy an exclusive right to provide the services concerned, by virtue of the law or other normative acts that are published to the extent that they are compatible with the Treaty. "
14. In article 18, paragraph (2) shall read as follows: "(2) the contracting authority is entitled to organise a contest solutions, i.e. a special procedure whereby purchases, particularly in the field of spatial planning, urban design and landscape architecture, or in that of data processing, a plan or a project by selecting it on the basis of competition by a jury with or without the grant of awards. "
15. Article 19 shall read as follows: Art. 19.-the contracting authority has the right to directly purchase products, services or works, to the extent that the value of the purchase, estimated in accordance with the provisions of section 2 of this chapter, shall not exceed the equivalent in lei of 5,000 euro for each product purchase, service or work. The purchase is done on the basis of documentary proof that, in this case, it is considered to be the public procurement contract, and the obligation of compliance with the provisions of this emergency Ordinance shall be limited solely to the provisions of art. 204 paragraph 2. (2)."
16. In article 20, paragraph (1) shall read as follows: Art. 20. — (1) the contracting authority is obliged to award the contract through tendering procedures open or restricted tender auction. "
17. In article 21, paragraph (1) shall read as follows: Art. 21. — (1) every contracting authority shall be entitled to apply the award procedures laid down in article 21. 18, by using electronic means. "
18. In article 49, after paragraph 6, insert a new paragraph, paragraph (7) with the following content: "(7) an autonomous Official Gazette Regia «» published ads forwarded for publication no later than 8 days from the date of registration thereof. In the case of the notice of invitation to tender referred to in article 1. 114, the Official Gazette Regia «Autonomous» public announcement concerned no later than 4 days after the date of registration. "
19. Article 67 shall read as follows: Art. 67.-the natural or legal person who has taken part in the preparation of procurement documentation is entitled, as economic operator, provider, associated bidder or subcontractor, but only if its involvement in the elaboration of the documentation of the award is not such as to distort competition. "
20. Article 68 shall read as follows: Art. 68.-natural or legal persons who participate directly in the process of verification/evaluation of applications/tenders do not have the right to stand as a candidate, the offeror, the offeror associated or subcontractor, under penalty of exclusion from the award procedure. "
21. In article 69, letters a and c)) shall read as follows: "the people who own party), social action party, the subscribed capital of one of the bidders/subcontractors, candidates or persons belonging to the Board of Directors/governing body or supervision of any of the candidates or tenderers/subcontractors;


c) people about it is found that may have an interest such as to impair their impartiality during the process of verification/evaluation of applications/tenders. "
  

22. In article 110, introductory part and paragraph a) of paragraph (1) shall read as follows: Art. 110. (1) the contracting authority is entitled to enforce the negotiated procedure with prior publication of a contract notice in the following cases: a) where, pursuant to the invitation to tender, the tender restricted or competitive dialogue has not been lodged with any tender or tenders have been submitted only unacceptable non-compliant times. Application of the whole negotiations process in this case is only possible after the initial procedure of open tender, tender restricted or competitive dialogue and only if the initial requirements set out in the documentation of procurement are not substantially modified; ".
  

23. In article 119, the letters b and c)) shall read as follows: "(b)) the address to which the negotiations are taking place and the release date thereof;

c) language (s) which will be satisfied by negotiations; ".
  

24. In article 122, paragraph a) is repealed.
25. In article 151, paragraph 1 shall read as follows: Art. 151. (1) the contracting authority is entitled to use a dynamic purchasing system only via the SEAP and only for the purchase of products of current use, the characteristics of which generally available on the market satisfy the needs of the contracting authority. "
26. In article 177, after paragraph 3, insert a new paragraph, paragraph (4), with the following contents: "(4) In case of use of official lists of economic operators, contracting authorities will request additional certificates attesting fulfilment of payment of taxes, duties and social security contributions in accordance with the legal provisions in force. '
27. In article 181, paragraph a) shall read as follows: ") is in bankruptcy liquidation, business times are run by an administrator or its commercial activities are suspended times subject to an arrangement with creditors, or is in a situation similar to the previous, regulated by law;".
28. In article 188, after the letter f) of paragraph 3 shall be inserted a new letter, the letter g) with the following content: "g) information on the part of the contract parties/EC to be carried out by subcontractors and their specialization."
29. In article 190, paragraph (2) shall read as follows: "(2) where the tenderer/candidate demonstrate technical capacity and professional support and citing, in accordance with paragraph 1. (1) to another person, then it has the obligation to prove support of benefiting, usually by presenting a firm commitment of the person concerned, by which it confirms that it will make available to the successful tenderer/applicant's technical and professional resources put forward. The person who ensures technical support should not be placed in a situation which causes exclusion from the award procedure in accordance with the provisions of art. 180 and 181. "
30. In article 215, after paragraph (1) insert a new paragraph, paragraph (2) with the following content: "(2) the restriction of unjustified access to tender dossier shall entail sanctioning by the national authority for the regulation and monitoring of public procurement of the contracting authority, in accordance with the provisions of this emergency Ordinance." — — — — — — — — — — — — — —

Paragraphs 1 and 2. (2) of article 9. 215 [in section 30 of the single item] was amended by CORRECTION No. 337 on 17 July 2006, published in MONITORUL OFICIAL nr. 662 of 1 august 2006.
31. In article 225, paragraph a) shall read as follows: "the concessionaire to award contracts) to third parties in a proportion of not less than 30% of the total value of the work for which the concession contract, leaving candidates the possibility of major part/parts of the contract or subcontract to them;".
32. In article 235, letter b) shall read as follows: "(b) the supply of gaseous fuels), heat or electricity through networks of the kind referred to. a). "
236. Article 33 shall read as follows: Art. 236.-gaseous fuels or Delivery of thermal energy through public networks by a contracting authority from the category of those defined in article 3. 8 lit. d) or (e)) shall not be considered a relevant activity within the meaning of art. 235, subject to the following cumulative conditions: a) operator produces thermal energy or gaseous fuels as an inevitable consequence of an activities other than those considered in this emergency Ordinance as relevant activities;
  

b the supply of gaseous fuels) or heat via public networks is made only in order to exploit economically this production, and turnover resulting from power supply networks shall not exceed 20% of the total turnover, having regard to the average for the preceding three years, including the current year. "
  

34. Article 237 shall read as follows: Art. 237.-delivery of electricity through public networks by a contracting authority from the category of those defined in article 3. 8 lit. d) or (e)) shall not be considered a relevant activity within the meaning of art. 235, subject to the following cumulative conditions: a) operator produces the electricity for the purposes of any other activities than those considered in this emergency Ordinance as relevant activities;
  

b) delivery of electricity through public networks depends solely on their own consumption of economic operators, and the weight carried by networks concerned does not exceed 30% of the total electricity production thereof, having regard to the average for the preceding three years, including the current year. "
  

238. in article 35, paragraph (1) shall read as follows: Art. 238.-(1) Is deemed to be the relevant activity in the public sector; 229 paragraph 2. (2) (a). c) making available or the exploitation of networks designed to ensure, in the interests of public transport services by rail and land transport services of passengers, graphic-based, such as public transport with buses, trams, subway, trolley or carriage on cable. "
36. Article 239 shall read as follows: Art. 239.-the provision of transport services operated with buses is not considered relevant activity where other economic operators have the right to provide the same services in the same geographical area and under the same conditions as the contracting authority. "
37. In article 252, the letter g) shall read as follows: "(g)) where products may be purchased on particularly advantageous terms from an economic operator definitively closed their businesses, from a manager that manages the Affairs of an economic operator in bankrupt or being wound up, through an arrangement with creditors of an economic operator in bankruptcy or winding up or by another similar procedure with the , governed by law; ".
38. In article 255, paragraph 1 shall read as follows: Art. 255. — (1) any person who considers himself aggrieved in his own right or in a vested interest by an act of the contracting authority, in contravention of legal provisions in the field of public procurement, is entitled to challenge the Act on administrative judicial path, under this emergency Ordinance, or in legal proceedings, in accordance with the law on administrative courts no. 554/2004, as amended. "
39. In article 257, paragraph (3) shall read as follows: "(3) in its work, the Council is subject to the law only, and Board meetings are legally established in the presence of the majority of its members."
40. Article 266, paragraph a) of paragraph (1) shall read as follows: "to settle the complaints) brought proceedings before the award of the contract, through complete specialised holdings in accordance with the rules of organization and operation, under art. 291; ".
41. In article 278, paragraph 8 shall read as follows: "(8) the Council may require, upon request, the party at fault to pay the expenditure incurred in the course of resolving the appeal."
279. in article 42, paragraphs (1) and (3) shall read as follows: Art. 279. (1) Council decision on how to resolve the appeal shall be taken by a majority vote of the members of the Commission, the latter having the option to abstain.


(3) Council decision adopted pursuant to paragraph 1. (1) you will be motivated and notified to the parties in writing, within 5 days of delivery. The decision will be published on the website of the Council. "
  

43. Article 280, paragraph (5) shall read as follows: "(5) the decisions on the settlement of the appeal and the obligation to pay the fine can be attacked with the complaint, within ten days after the communication, both on grounds of illegality, and netemeinicie, under art. 283. ' 44. In article 283, paragraph (2) shall read as follows: "(2) the complaint will be resolved completely composed of 3 judges."
45. In article 286, paragraph (2) shall read as follows: "(2) where the person who considers himself aggrieved is requesting payment of compensation, then it must prove that: (a) the provisions of this Ordinance) of an emergency has been infringed; and (b)) would have had a real chance of winning the contract, and it has been compromised as a result of infringement of the provisions of this Ordinance. "
  

46. Article 288 shall be repealed.
47. Article 293, the letter m) shall read as follows: "m) refusal to transmit the national authority for the regulation and monitoring of public procurement information relating to the award of contracts by invitation to tender, it is entitled to require under the provisions laid down by law."
48. Article 295, paragraph (3) are repealed.
49. In article 301, paragraph (1) shall read as follows: Art. 301. — (1) the operator of SEAP is General Inspectorate for communications and information technology. "
50. In article 303, paragraph 1 shall read as follows: Art. 303. (1) the national authority for the regulation and monitoring of public procurement shall draw up rules for the implementation of this emergency Ordinance, including model contract invitation to tender, the contract for the concession of public works and of the concession contract, which they submit to the Government for adoption within 60 days of its publication in the Official Gazette of Romania Part I of this emergency Ordinance. "
51. After article 304 shall be inserted a new article, article 304 ^ 1 with the following content: "Art. 304 ^ 1. -With effect from 1 January 2007, the national authority for the regulation and monitoring of public procurement will keep monitoring Register of procurement contracts, in which are recorded the contracts with a value of more than 100,000 euro. "
52. in annex 3A, section "notice for public procurement contracts", in paragraph (c) of section 3 and section 23 shall read as follows: "3. [] (c) where appropriate, indicate whether they are to be entered into a framework agreement;

23. The criterion for the award of the contract: "lowest price" or "most economically advantageous tender from the point of view", as well as their weighting shall be indicated only where not included in the documentation of procurement times, where the competitive dialogue or negotiation in the descriptive documentation. "
This law was adopted in the Romanian Parliament, in compliance with the provisions of art. 75 and of art. 76 para. (2) of the Constitution of Romania, republished.
PRESIDENT of the CHAMBER of DEPUTIES BOGDAN OLTEANU PRESIDENT of SENATE NICOLAE VĂCĂROIU Bucharest, July 17, 2006.
Nr. 337.
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