Four key changes to the public procurement legislation introduced by Law No 208/2022

Law no. 208/2022 has been promulgated by the President of Romania and will enter into force within 60 days from its publication in the Official Gazette of Romania.

Authors: Adrian Cristea (senior associate), Adrian Zamfir (associate)

The law will amend and supplement the following legislative acts of major importance in the field of public procurement:

Law no. 98/2016 on public procurement;
Law no. 99/2016 on sectoral procurement;
Law no. 100/2016 on works concessions and service concessions; and
Law no. 101/2016 on remedies and appeals in relation to the award of public procurement agreements, sectoral agreements and works concession and service concession agreements, as well as for the organization and functioning of the National Council for Solving Complaints (in Romanian: Consiliul Național de Soluționare a Contestațiilor).

Within 30 days from the date of entry into force of Law no. 208/2022, the Methodological Norms related to each of the amended laws shall also be amended/updated.

According to the explanatory memorandum published on the website of the Chamber of Deputies, the main aims of the amendments are:

to facilitate public investment;
to correlate primary and secondary legislation in the field;
to clearly define certain terms and rules which give rise to misinterpretation;
to access European funds in the context of the activation of the National Recovery and Resilience Plan (NRRP) procedure – the purpose of the proposed amendments is to create a favourable framework for the investments and reforms envisaged by the European Commission through this funding instrument.

The key changes/supplementations concern the following issues:

Increasing (doubling) thresholds on the value of direct purchases – from RON 135,060 to RON 270,120, respectively from RON 450,200 to RON 900,400. The arguments put forward by the initiators of the draft law were to facilitate access to European funds and to counter the effects of inflation and exchange rate fluctuations.
The deadline for tenderers/candidates to reply to the contracting authority’s request for completion/clarification of the tender, including any extension reasonably requested by the economic operator, shall not exceed 15 business days and shall be determined according to the complexity of the request.
The express specification that the National Agency for Public Procurement (in Romanian: Agenția Națională pentru Achiziții Publice) (hereinafter referred to as “ANAP”) also has the right to request the court to declare that the agreement/addendum thereto, concluded in violation of the public procurement legislation, is absolutely null and void and to restore the parties to their previous situation. ANAP is exempt from stamp duty in relation to requests for declaration of absolute nullity of public procurement agreements.
It is expressly provided that proceedings and claims for compensation of damages arising from the award procedure, as well as those relating to the performance, annulment, nullity, rescission, termination or unilateral termination of agreements, shall be settled in a court of first instance, as a matter of urgency and priority, by specialized procurement panels within 45 days. This time limit may be unrealistic, given that evidence is requested, the submission of which requires a longer period of time (e.g., expert report).

It remains to be seen to what extent these changes will be beneficial and help contracting authorities as well as the business environment.

Some of these changes are obviously welcome but raising the thresholds for the value of direct purchases is likely to affect basic principles such as free competition and transparency and negatively influence the quality of services, products or works awarded through public procurement procedures.