Advanced Search

Law No. 195 Of November 1, 2012 Approving Government Emergency Ordinance No. 114/2011 Regarding The Award Of Certain Public Contracts In The Fields Of Defense And Security

Original Language Title:  LEGE nr. 195 din 1 noiembrie 2012 pentru aprobarea Ordonanţei de urgenţă a Guvernului nr. 114/2011 privind atribuirea anumitor contracte de achiziţii publice în domeniile apărării şi securităţii

Subscribe to a Global-Regulation Premium Membership Today!

Key Benefits:

Subscribe Now for only USD$40 per month.
LEGE no. 195 195 of 1 November 2012 for approval Government Emergency Ordinance no. 114/2011 on the award of certain public contracts in the fields of defence and security
ISSUER PARLIAMENT
Published in OFFICIAL MONITOR no. 753 753 of 8 November 2012



The Romanian Parliament adopts this law + Article UNIC Approval Government Emergency Ordinance no. 114 114 of 21 December 2011 on the award of certain public contracts in the fields of defence and security, published in the Official Gazette of Romania, Part I, no. 932 of 29 December 2011, with the following amendments and additions: 1. In Article 1 (1), the introductory part shall be amended and shall read as follows: "" Art. 1. -(1) Subject to the provisions of art. 36, 51, 52, 62 and 346 of the Treaty on the Functioning of the European Union, this Emergency Ordinance shall apply for the award of public procurement contracts, including sectoral contracts, and framework agreements awarded in the fields of defence and security, which have as their object: " 2. In Article 3, point 4, point c) is amended and shall read as follows: "" c) any association formed by one or more contracting authorities of those referred to in point (a). a), b), d) or e); " 3. In Article 7 (2), the introductory part shall be amended and shall read as follows: " (2) The contracting authority has the obligation to ask the bidders to set up the participation guarantee, in order to participate in the contract award procedure, when this emergency ordinance provides for the obligation to publish an announcement or invitation to participate and the estimated value of the contract is higher than the threshold provided for in art. 56. The award documentation shall contain the following information: " 4. In Article 9 (1), after letter b) a new letter, letter c) is inserted, with the following contents: "c) to submit the individual/joint offer and to be nominated as a third party supporter in another offer, under penalty of exclusion of the individual offer or, as the case may be, of the one in which he is an associate bidder." 5. In Article 22, letter b) is amended and shall read as follows: "b) contracts intended for activities specific to information structures;" 6. In Article 51, a new paragraph (2) is inserted, with the following contents: " (2) The contracting authority has the obligation to request the prior approval of the Parliament for the initiation of the award procedure, if the estimated value of the contract, excluding VAT, is equal to or greater than the equivalent in lei of 100.000.000 100.000.000 euros. Without being affected the applicability of the provisions of this emergency ordinance regarding the initiation, conduct and completion of the award procedure, the Parliament, through the joint committees of defense, public order and national security, approves that request within 15 days of its receipt. " 7. Article 56 is amended and shall read as follows: "" Art. 56. -The contracting authority has the right to purchase directly products, services or works, as far as the value of the purchase, estimated according to the provisions of section 1 of the head II, does not exceed the equivalent in lei of 75,000 euros for each purchase of products, services or works. The acquisition is based on a supporting document. " 8. In Article 102, letter l) is amended and shall read as follows: "" l) when, after the award of a contract of works or services, the contracting authority proposes to purchase new works, namely new services which are similar to the works or services acquired by assigning the initial contract and only if the following conditions are met cumulatively: -the award is made to the original contractor, and the new works, namely the new services consist in repeating some works or services similar to those provided for in the contract initially awarded and comply with the requirements set out in the specification elaborated on the occasion of the award of the -the original works/services contract was awarded by a tendering procedure, restricted tender, negotiation with the prior publication of a contract notice or competitive dialogue; -the estimated value of the original works/services contract was determined by taking into account the similar works/services that can be purchased later; -in the notice/invitation to participate in the procedure applied for the award of the initial contract it was noted that the contracting authority has the right to opt for the subsequent purchase of new similar works, namely new services similar from the economic operator whose bid will be declared as the winner in that procedure; -the contracting authority has the right to apply this procedure within a period which may not exceed 5 years after the award of the original contract, outside the exceptional circumstances determined by the consideration of the expected lifetime of the any of the items, installations or systems delivered and the technical difficulties that a change of supplier could cause; ' 9. In Article 127, paragraph 1 is amended and shall read as follows: "" Art. 127. -(1) The contracting authority has the obligation to submit for publication the notices/invitations provided for in art. 126 126 para. (1) to the SEAP operator, using only electronic means in this regard. " 10. Article 128 (2) to (5) shall be repealed. 11. Article 128 (6) and (b) of paragraph (10) shall be amended and shall read as follows: " (6) The National Authority for the Regulation and Monitoring of Public Procurement verifies each notice of intent/notice of participation/invitation to participate transmitted/transmitted by the contracting authority for publication in SEAP, to the extent in which the notice/invitation concerned is related to the application of the procedure for the award of a contract, irrespective of its estimated value. ............................................................................................... b) to publish the notice in SEAP no later than two working days after receipt of the acceptance of the publication. " 12. Article 154 is amended and shall read as follows: "" Art. 154. -(1) The qualification and selection criteria established by the contracting authority must have an obvious link with the subject-matter of the contract to be awarded. (2) The contracting authority has the obligation to respect the principle of proportionality when determining the qualification and selection criteria, as well as the level of minimum requirements that tenderers/candidates must meet. (3) The qualification and selection criteria specified in the contract notice/invitation must be the same as those specified in the award documentation. (4) Any modification and/or completion of the qualification and selection criteria specified according to par. (3) conducts/leads to the cancellation of the award procedure, except for the amendments ordered by the decision of the National Council for the Settlement of Appeals or those operated by the contracting authority as erred, but only if the publication of the erats was done with the extension of the application/bid period. " 13. In Article 156, letter b) is amended and shall read as follows: "" b) has been convicted in the last 3 years, by the final judgment of a court of law, for an act which has affected professional ethics or for the commission of a mistake in professional matters; " 14. In Article 161, paragraph 2 shall be amended and shall read as follows: " (2) If the bidder/candidate demonstrates his economic and financial situation by invoking and supporting it, 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, concluded in authentic form, by which he confirms that he will put to the provision of the bidder/candidate financial resources. The person who ensures the financial support must not be in the situation that determines the exclusion from the award procedure, according to the provisions of art. 155 155 and 156. " 15. Article 174 is amended and shall read as follows: "" Art. 174. -(1) In the case of application of the criterion of lt; lt; the most economically advantageous offer gt; gt;, the offer established as the winner is the offer that meets the highest score resulting from the application of a system of factors of assessment for which relative weights are established. Where, for objective reasons, which the contracting authority may justify thoroughly, it is impossible to establish the exact weights for each assessment factor, the contracting authority shall be required to indicate in the the notice/invitation to participate and in the award documentation at least the descending order of the importance of the assessment factors to be used. (2) The evaluation factors of the offer, provided in par. (1), may be, together with the price: characteristics regarding the qualitative, technical or functional level, environmental characteristics, usage costs, operating costs, cost/efficiency ratio, after-sales service and technical assistance, delivery time or execution, security of supply, interoperability and operational characteristics, other elements considered significant for the evaluation of tenders. (3) The contracting authority has the obligation to specify, clearly, in the notice/invitation to participate, as well as in the award documentation, the evaluation factors of the offer, with their relative weights. (4) The contracting authority has the obligation to specify in the award documentation the calculation algorithm or the concrete methodology for scoring the advantages that will result from the technical and financial proposals presented by the bidders. (5) Any modification and/or completion of the evaluation factors specified according to par. ((3) leads/leads to the cancellation of the award procedure. " 16. After Article 179 a new article is inserted, Article 179 ^ 1, with the following contents: "" Art. 179 179 ^ 1. -In a public procurement contract only the divestment of claims arising from that contract is allowed, the obligations born remaining in charge of the contracting parties, as stipulated and assumed initially. " 17. Article 181 is amended and shall read as follows: "" Art. 181. -(1) The contracting authority shall cancel the application of the procedure for the award of the public procurement contract in the following cases: a) if only unacceptable and/or non-compliant offers have been submitted; b) if no offer has been submitted or if tenders have been submitted which, although may be taken into account, cannot be compared due to the patchy approach to technical and/or financial solutions; c) if serious deviations from the legislative provisions affect the award procedure or if it is impossible to conclude the contract. (2) By exception to the provisions of art. 179, the contracting authority has the right to cancel the application of the procedure for the award of the public procurement contract, if it makes this decision before the date of conclusion of the contract, only a) the contracting authority is in one of the situations referred to in art. 64 64 para. ((2) lit. a), art. 79 79 para. ((2) lit. a), art. 94 94 para. ((2) lit. a) or art. 114 lit. a); b) as a result of the decision rendered by the National Council for the Settlement of Appeals ordering the removal of any technical specifications from the specifications or from other documents issued in connection with the award procedure. ((3) Provisions of para. ((2) may not affect the obligation of the contracting authority to cancel an award procedure following a judicial decision or a decision in this regard of the National Council for the Settlement of Appeals. (4) For the purposes of paragraph ((1) lit. c), through serious deviations from the legislative provisions are understood: a) the qualification and selection criteria, as well as the award criterion or assessment factors provided for in the invitation/contract notice, as well as in the award documentation have been modified; b) during the analysis, evaluation and/or completion of the award procedure, errors or omissions are found, and the contracting authority is unable to adopt corrective measures without them leading to violation of the principles provided in art. 2 2 para. ((2) lit. a)-f). " 18. In Article 185 (1), point n) shall be amended and shall read as follows: "n) if applicable, the appeals made in the award procedure, accompanied by the reasoned decisions rendered by the National Council for the Settlement of Appeals;" 19. In Article 188, paragraph 2 shall be amended and shall read as follows: " (2) Without affecting the provisions of par. ((1), in any event, a contract may not be considered as devoid of effects if the consequences of this would seriously jeopardise the very existence of a defence or security programme, which is essential for national security interests. " 20. In Article 189, points a) and e) shall be amended and shall read as follows: " a) violation of art. 13 13; ............................................................................................ e) the violation of the advertising rules provided for by this Emergency Ordinance, with the exception of those relating to the award notice, and/or the non-fulfilment by the contracting authorities of the obligation to register in SEAP, as is provided by the legislation on public procurement; " 21. In Article 189, after letter e) a new letter is inserted, letter e ^ 1), with the following contents: "e ^ 1) the violation of the advertising rules provided for by this emergency ordinance regarding the award notice;" 22. In Article 189, the letters j) and l) shall be amended and shall read as follows: " j) the change of the award criterion specified in the invitation/contract notice and the award documentation during the application of the award procedure; ............................................................................................... l) incorrect application, within the selection and/or evaluation process, of the criteria established by the award documentation or the application of other criteria than those established in the invitation/contract notice and the award documentation; " 23. In Article 189, after letter w) a new letter, letter x) is inserted, with the following contents: "" x) non-solicitation by the contracting authority of the information necessary for the evaluation of tenders which have an unusually low price in relation to what is to be supplied/prestat/executed. '; 24. In Article 190, paragraphs 1 and 2 shall be amended and shall read as follows: "" Art. 190. -(1) Contraventions provided in art. 189 lit. e ^ 1), o), u) and w) are sanctioned with a fine of 20,000 lei to 40,000 lei. (2) Contraventions provided in art. 189 lit. a), c), k), r), t), v) and x) shall be sanctioned with a fine of 40,000 lei to 80,000 lei. " 25. In Article 193 (1), letter b) shall be amended and shall read as follows: " b) the provisions of art. 137 137 para. ((4), art. 180 180 para. ((1) of this Emergency Ordinance and art. 256 ^ 3 para. (3) of O.U.G. no. 34/2006 ;; " 26. In Article 193 (1), after letter f) two new letters, letters g) and h) shall be inserted, with the following contents: " g) the modification of the qualification and selection criteria and/or the assessment factors provided for in the invitation/contract notice; h) the modification of the contract led to the reduction of the advantages and, as the case may be, the evaluation factors that were the basis for declaring the winning bid. " 27. in Article 193, after paragraph 3, a new paragraph (4) is inserted, with the following contents: " (4) In duly justified cases, the court, until the settlement of the merits of the case, may order, at the request of the National Authority for the Regulation and Monitoring of Public Procurement, by reasoned conclusion with the citation of the parties, suspension of contract performance. " 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 VALERIU STEFAN ZGONEA SENATE PRESIDENT GEORGE-CRIN LAURENȚIU ANTONESCU Bucharest, November 1, 2012. No. 195. -----