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Law No. 337 On 17 July 2006

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

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LEGE no. 337 337 of 17 July 2006 (* updated *) for approval Government Emergency Ordinance no. 34/2006 on the award of public procurement contracts, public works concession contracts and service concession contracts ((updated until 1 August 2006 *)
ISSUER PARLIAMENT




---------------- *) The initial text was published in the OFFICIAL GAZETTE no. 625 625 of 20 July 2006. This is the updated form of S.C. "Territorial Center of Electronic Computing" S.A. Piatra-Neamt, until August 1, 2006, with the changes made by RECTIFICATION no. 337 337 of 17 July 2006 . The Romanian Parliament adopts this law + Article UNIC Approval Government Emergency Ordinance no. 34 34 of 19 April 2006 on the award of public procurement contracts, public works concession contracts and service concession contracts, published in the Official Gazette of Romania, Part I, no. 418 of 15 May 2006, with the following amendments and additions: 1. Article 1 shall read as follows: "" Art. 1. -The present emergency ordinance regulates the procedures for the award of the public procurement contract, the public works concession contract and the service concession contract, as well as the modalities of the appeals against acts issued in connection with these proceedings. '; 2. In Article 2, letter f) of paragraph (2) shall read as follows: " f) efficiency of the use of public funds; ' 3. Article 3 shall read as follows: "" Art. 3. -For the purposes of this emergency ordinance, the following terms and expressions have the following meanings: a) acceptance of the winning offer-the legal act by which the contracting authority manifests its agreement to legally engage in the public procurement contract that will be concluded with the bidder whose tender has been awarded the winner; b) framework agreement-written agreement between one or more contracting authorities and one or more economic operators, the purpose of which is to establish the essential elements/conditions that will govern public procurement contracts is to be awarded over a given period, in particular as regards the price and, where applicable, the quantities envisaged; c) candidate-any economic operator who has applied for a restricted tendering procedure, negotiation or competitive dialogue; d) candidacy-the documents by which a candidate demonstrates his personal situation, the ability to exercise the professional activity, the economic and financial situation, the technical and professional capacity, in order to obtain the invitation participation in the subsequent submission of the tender, in the event of a restricted tendering procedure, negotiation or competitive dialogue; e) competitor-any economic operator who presented a project in a solution contest; f) public procurement contract-the contract that also includes the category of the sectoral contract, as defined in art. 229 229 para. ((2), by way of consideration, concluded in writing between one or more contracting authorities, on the one hand, and one or more economic operators, on the other, having as their object the execution of works, the supply of products or the provision of services, in the meaning of this emergency ordinance; g) public works concession contract-the contract that has the same characteristics as the works contract, with the distinction that in the counterpart of the works executed the contractor, as concessionaire, receives from the authority contracting, as a concedent, the right to exploit the result of works for a fixed period or this right accompanied by the payment of a predetermined amount of money; h) service concession contract-the contract that has the same characteristics as the service contract, with the distinction that in the counterpart of the services provided the contractor, as concessionaire, receives from the authority contracting, as a concedent, the right to operate the services for a fixed period or this right accompanied by the payment of a predetermined amount of money; i) contractor-the bidder who became, under the law, part of a public procurement contract; j) award documentation-documentation comprising all the information related to the subject matter of the public procurement contract and the procedure for its award, including the specification or, as the case may be, the descriptive documentation; k) special or exclusive right-the right resulting from any form of authorization granted, according to the legal provisions or as a result of the issuance of administrative acts, by a competent authority and which has as effect the reservation of the activities in the field of certain public services only by one or a limited number of persons, substantially affecting the possibility of other persons to carry out such an activity; l) public funds-amounts allocated from the budgets provided for in art. 1 1 para. ((2) of Law no. 500/2002 on public finances, as amended; m) public undertaking-a legal entity carrying out economic activities and on which it is exercised directly or indirectly, as a result of property rights, financial holdings or specific rules provided for in the act of the establishment of that undertaking, the dominant influence of a contracting authority as defined in art. 8 lit. a), b) or c); the presumption of exercising the dominant influence shall apply in any situation in which, in relation to such person, one or more contracting authorities defined according to art. 8 lit. a), b) or c) are, directly or indirectly, in at least one of the following cases: -hold the majority of subscribed capital; -have control of the majority of votes in the governing body, such as the general assembly; -may be referred to as the board of directors, management or supervisory body of more than half of its members; n) electronic auction-the repetitive process carried out after a first full evaluation of the offers, in which bidders have the possibility, exclusively through electronic means, to reduce the prices presented and/or improve other elements of the offer; the final assessment must be carried out automatically by the electronic means used; o) electronic means-the use of electronic equipment for the processing and storage of data that are broadcast, transmitted and received by cable, radio, optical means or by other electromagnetic means; p) bidder-any economic operator who submitted the tender; q) the offer-the legal act by which the economic operator manifests his will to engage legally in a public procurement contract; the offer includes the financial proposal and the technical proposal; r) economic operator-any supplier of products, service provider or works executor-natural/legal person, public or private law, or group of such persons with activity in the field that offers products on the market, services and/or execution of works; s) the operator of the electronic public procurement system-the legal entity governed by public law which provides the contracting authorities with the technical support for the application by electronic means of the award procedures; s) the award procedure-the stages to be covered by the contracting authority and by the candidates/bidders for the agreement of the parties on the employment in the public procurement contract to be considered valid; the award procedures are: the open tender, the restricted tender, the competitive dialogue, the negotiation, the call for tenders, the solution contest; t) financial proposal-part of the offer that includes the information on price, tariff, other financial and commercial conditions corresponding to the satisfaction of the requirements requested by the award documentation; t) technical proposal-part of the offer elaborated on the basis of the requirements of the specification or, as the case may be, of the descrip u) "written" or "in writing"-any set of words and figures that can be read, reproduced and then communicated. This assembly may also include information transmitted and stored by electronic means; v) the electronic procurement system-SEAP designates the public utility computer system, accessible via the internet to a dedicated address, used for the purpose of electronic application of the award procedures; x) Treaty-Treaty for the establishment of the European Community, concluded on 25 March 1957, with subsequent amendments and completions; y) common vocabulary of public procurement-CPV-designates the reference nomenclature applicable to public procurement contracts, adopted by Regulation no. 2.195/2002/EC of the European Parliament and of the Council on the common vocabulary of public procurement, published in the Official Journal of the European Union no. L 340 of 16 December 2002, providing correspondence with other existing nomenclatures; z) days-calendar days, unless stated that they are working days. " 4. In Chapter I, after the title of the 3rd section, a new article is inserted, Article 3 ^ 1, with the following contents: "" Art. 3 3 ^ 1. -Public procurement contracts are: a) works contracts; b) supply contracts; c) service contracts. " 5. In Article 4, letter c) of paragraph (1) shall read as follows: " c) either the realization by any means of a construction that corresponds to the necessity and objectives of the contracting authority, in so far as they do not meet the provisions of a) and b). " 6. In Article 5, paragraph 2 shall read as follows: "(2) The public procurement contract that has as its main object the supply of products and, as an accessory, operations/works of installation and commissioning thereof is considered a supply contract." 7. In Article 6, paragraph 1 shall read as follows: "" Art. 6. -(1) The service contract is that public procurement contract, other than the works or supply contract, which has as its object the provision of one or more services, as provided for in Annexes no. 2A and 2B. " 8. In Article 9, letter c) shall read as follows: " c) the award of the public procurement contract by an economic operator, if that contract is directly financed/subsidised more than 50% by a contracting authority; '. 9. In Article 12, letter b) shall read as follows: "b) the performance of the contract requires the imposition of special safety measures, in order to protect national interests, according to the legal provisions in force;" 10. Article 12 (c) shall be repealed. 11. In Article 13, letter a) shall read as follows: "" a) it has as its object the purchase or lease, by any financial means, of land, existing buildings, other immovable property or of the rights to them. The award of financial service contracts that end, regardless of the form, in connection with the respective purchase or rental contract, shall be subject to the provisions of this emergency ordinance; ". 12. in Article 14, point c) of paragraph 1 and paragraph 2 shall read as follows: " c) the application of a specific procedure to bodies and institutions. (2) The contracting authorities have the obligation to inform the National Authority for the Regulation and Monitoring of Public Procurement on the agreements provided in par. ((1) lit. a), existing in their field of activity. " 13. In Article 15, paragraph 1 shall read as follows: "" Art. 15. --(1) This emergency ordinance does not apply for the award of the service contract to another contracting authority or to an association of contracting authorities, where they benefit from an exclusive right for the provision of to those services, by virtue of the law or other normative acts that are published, in so far as they are compatible with the provisions of the Treaty. " 14. In Article 18, paragraph 2 shall read as follows: " (2) The contracting authority has the right to organize a contest of solutions, namely a special procedure by which it acquires, especially in the field of spatial planning, urban and landscape design, architecture or in the of data processing, a plan or a project, by selecting it on a competitive basis by a jury, with or without awarding prizes. " 15. Article 19 shall read as follows: "" Art. 19. -The contracting authority has the right to purchase directly products, services or works, in so far as the value of the purchase, estimated according to the provisions of section 2 of this chapter, does not exceed the equivalent in lei of 5,000 euros for every purchase of products, service or work. The purchase is made on the basis of justifying document that, in this case, is considered to be a public procurement contract, and the obligation to comply with the provisions of this emergency ordinance is limited only to the provisions of art. 204 204 para. ((2). ' 16. In Article 20, paragraph 1 shall read as follows: "" Art. 20. -(1) The contracting authority shall have the obligation to award the public procurement contract by applying the tendering procedures opened or tendering restricted. " 17. In Article 21, paragraph 1 shall read as follows: "" Art. 21. -(1) Any contracting authority has the right to apply the award procedures provided for in art. 18, by using electronic means. " 18. In Article 49, after paragraph 6, a new paragraph (7) is inserted, with the following contents: "(7) The Autonomous Regia" Monitorul Oficial " publishes the notices submitted for publication no later than 8 days from the date of their registration. In the case of the contract notice provided in art. 114, The Autonomous Regia "Monitorul Oficial" publishes the respective announcement within 4 days from the date of registration. " 19. Article 67 shall read as follows: "" Art. 67. -The natural or legal person who participated in the preparation of the award documentation has the right, as an economic operator, to be a bidder, an associate bidder or subcontractor, but only if his involvement in the elaboration the award documentation is not liable 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 shall not be entitled to be a candidate, tenderer, associate tenderer or subcontractor, under penalty of exclusion from the award procedure. " 21. In Article 69, points a) and c) shall read as follows: "" a) persons holding social parts, parts of interest, shares of the subscribed capital of one of the tenderers/candidates or subcontractors or persons belonging to the board of directors/body of management or supervision of one of tenderers/candidates or subcontractors; ........................................................................... c) persons who are found to have an interest in nature to affect their impartiality during the verification/evaluation process of applications/tenders. " 22. In Article 110, the introductory part and letter a) of paragraph 1 shall read as follows: "" Art. 110. -(1) The contracting authority shall have the right to apply the negotiated procedure, with the prior publication of a contract notice, in the following cases: a) where, following the application of the open tender, restricted tender or competitive dialogue, no offer has been submitted or only unacceptable or non-compliant offers have been submitted. The application of the negotiated procedure in this case is only possible after the cancellation of the initial open tender procedure, restricted tender or competitive dialogue and only if the initial requirements set out in the award documentation are not substantially amended; '. 23. In Article 119, letters b) and c) shall read as follows: " b) the address to which negotiations will take place and the date of their launch; c) the language/languages in which the negotiations will be conducted; ". 24. Article 122, point a) shall be repealed. 25. In Article 151, paragraph 1 shall read as follows: "" Art. 151. -(1) The contracting authority has the right to use a dynamic purchasing system only through SEAP and only for the acquisition of current use products, whose overall characteristics available on the market satisfy the needs of the authority contracting. ' 26. In Article 177, after paragraph 3, a new paragraph (4) is inserted, with the following contents: "" (4) In case of use of the official lists of the designated economic operators, the contracting authorities shall require additional certificates attesting the fulfilment of the obligations to pay taxes, duties and insurance contributions social, in accordance with the legal provisions in force. " 27. In Article 181, letter a) shall read as follows: "" a) is bankrupt or wound up, business is run by a judicial administrator or its commercial activities are suspended or are subject to an arrangement with creditors or is in a situation similar to previous ones, regulated by law; ". 28. In Article 188, after letter f) of paragraph (3), a new letter, letter g) is inserted, with the following contents: " g) information on the part/parts of the contract to be fulfilled by subcontractors and their specialisation. '; 29. In Article 190, paragraph 2 shall read as follows: " (2) If the bidder/candidate demonstrates his technical and professional capacity by invoking and supporting him, in accordance with the provisions of par. (1), by another person, then he has the obligation to prove his support, as a rule, by presenting a firm commitment of that person, by which he confirms that he provides provide the candidate/candidate with the technical and professional resources invoked. The person who provides the technical support must not be in the situation that determines the exclusion from the award procedure, according to the provisions of art. 180 180 and 181. " 30. In Article 215, after paragraph 1, a new paragraph (2) is inserted, with the following contents: " (2) Unjustified restriction of access to the public procurement file attracts the sanctioning by the National Authority for the Regulation and Monitoring of Public Procurement of the head of the contracting authority, according to the provisions this emergency ordinance. '; -------------- Alin. ((2) of art. 215 215 [from point 30 30 of the single article] was amended by RECTIFICATION no. 337 337 of 17 July 2006 , published in MONITORUL OFFICIAL no. 662 662 of 1 August 2006. 31. In Article 225, letter a) shall read as follows: " a) the concessionaire to award contracts to third parties, at a minimum of 30% of the total value of the works subject to the concession, leaving the candidates the opportunity to increase the part/parts of the contract they are to subcontract; '. 32. In Article 235, letter b) shall read as follows: " b) the supply of gaseous fuels, thermal energy or electricity through networks of the nature of those referred to in lett. a). " 33. Article 236 shall read as follows: "" Art. 236. -Delivery of gaseous fuels or thermal energy through public networks by a contracting authority in the category of those defined in art. 8 lit. d) or e) shall not be considered as relevant activity within the meaning of 235, if the following conditions are cumulatively met: a) the economic operator produces thermal energy or gaseous fuels as an unavoidable consequence of any activity other than those considered by the present emergency ordinance as relevant activities; b) the delivery of gaseous or thermal energy fuels through public networks is made only in order to economically exploit this production and the turnover resulting from the supply of those networks does not exceed 20% of the figure of total business, taking into account the average of the last 3 years, including the current year. " 34. Article 237 shall read as follows: "" Art. 237. -Delivery of electricity through public networks of a contracting authority in the category of those defined in art. 8 lit. d) or e) shall not be considered as relevant activity within the meaning of 235, if the following conditions are cumulatively met: a) the economic operator produces electricity for the purpose of performing an activity other than those considered by the present emergency ordinance as relevant activities; b) the supply of electricity through public networks depends only on the economic operator's own consumption, and the quantity transported through those networks does not exceed 30% of its total electricity production, having the average of the last 3 years, including the current year. " 35. In Article 238, paragraph 1 shall read as follows: "" Art. 238. -(1) It is considered relevant activity in the public utility sector provided for in art. 229 229 para. ((2) lit. c) the provision or operation of networks intended to ensure, for the benefit of the public, transport services by rail and passenger transport services, on a graphic basis, such as public transport by buses, trams, subway, trolleybuses or cableway transport. " 36. Article 239 shall read as follows: "" Art. 239. -The provision of transport services carried out by buses is not considered as relevant activity where other economic operators are entitled to provide the same type of services, in the same geographical area and under the same conditions as contracting authorities. ' 37. In Article 252, letter g) shall read as follows: "" g) where products can be purchased under particularly advantageous conditions from an economic operator who permanently liquidates his business, from a judicial administrator who manages the business of a bankrupt economic operator or liquidation, through an arrangement with the creditors of an economic operator in bankruptcy or liquidation or through another procedure similar to the previous ones, regulated by law; ". 38. In Article 255, paragraph 1 shall read as follows: "" Art. 255. -(1) The person who considers himself injured in a right or in a legitimate interest by an act of the contracting authority, in violation of the legal provisions in the matter of public procurement, has the right to contest that act by way of administrative-jurisdictional, under the conditions of this emergency ordinance, or in justice, under the conditions Law of Administrative Litigation no. 554/2004 ,, as amended. " 39. In Article 257, paragraph 3 shall read as follows: " (3) In its work, the Council shall be subject only to the law and the meetings of the Council shall be legally constituted in the presence of the majority 40. In Article 266, letter a) of paragraph (1) shall read as follows: " a) to settle the appeals made in the award procedure, before the conclusion of the contract, by specialized complete, constituted according to the organization and functioning regulation, according to art. 291 291; '. 41. In Article 278, paragraph 8 shall read as follows: "(8) The Council may, upon request, compel the party at fault to pay the expenses incurred during the resolution of the appeal." 42. In Article 279, paragraphs 1 and 3 shall read as follows: "" Art. 279. -(1) The decision of the Council on how to resolve the appeal shall be adopted by the majority of the members of the panel, who shall not be able to abstain. ........................................................................... (3) Council Decision, adopted in accordance with paragraph 1 (1), shall be reasoned and communicated in writing to the parties, within 5 days of delivery. The decision will be published on the Council's website. " 43. In Article 280, paragraph 5 shall read as follows: " (5) The decisions of the Council on the resolution of the appeal and the obligation to pay the fine can be appealed with complaint, within 10 days of communication, both on grounds of illegality and non-merits, according to art. 283 283. " 44. In Article 283, paragraph 2 shall read as follows: "" (2) The complaint shall be settled in a panel of three judges. " 45. In Article 286, paragraph 2 shall read as follows: " (2) If the person who considers himself injured requests the payment of compensation, then it must provide proof that: a) the provisions of this emergency ordinance have been violated; and b) would have had a real chance to win the contract, and it was compromised as a result of the violation of the provisions of this emergency ordinance. " 46. Article 288 shall be repealed. 47. In Article 293, letter m) shall read as follows: "m) the refusal to transmit to the National Authority for the Regulation and Monitoring of Public Procurement the information on the award of public procurement contracts, which it has the right to request according to the legal provisions." 48. Article 295 (3) shall be repealed. 49. In Article 301, paragraph 1 shall read as follows: "" Art. 301. -(1) The SEAP operator is the 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 develop rules for the application of this emergency ordinance, including the model of the public procurement contract, the public works concession contract and of the service concession contract, which it submits for adoption to the Government within 60 days from the date of publication in the Official Gazette of Romania, Part I, of this emergency ordinance. " 51. After Article 304 a new article is inserted, Article 304 ^ 1, with the following contents: "" Art. 304 304 ^ 1. -As of January 1, 2007, the National Authority for the Regulation and Monitoring of Public Procurement will keep the Register of Public Procurement Monitoring, in which contracts with a higher value of 100.000 100.000 euro. " 52. In Annex 3A, the section "Contract notice for public procurement contracts", point (c) of point 3 and paragraph 23 shall read as follows: "" 3. [[...] (c) As the case may be, it shall be specified whether a framework agreement is to be concluded; ........................................................................... 23. The award criterion of the contract: "the lowest price" or "the most economically advantageous offer", as well as their share shall be stated only if they do not appear in the award documentation or, in the case of application competitive dialogue or negotiation, in the descriptive documentation. " This law was adopted by the Romanian Parliament, in compliance with the provisions of art. 75 75 and art. 76 76 para. (2) of the Romanian Constitution, republished. CHAMBER OF DEPUTIES PRESIDENT BOGDAN OLTEANU SENATE PRESIDENT NICOLAE VACAROIU Bucharest, July 17, 2006. No. 337. _________