This article is part of our special report Public procurement corruption in Romania.
SPECIAL REPORT: Romanian public procurement legislation was modified significantly this year by the government, which introduced restrictive conditions for lodging a complaint against suspected fraud. EURACTIV Romania reports.
The government adopted the extremely controversial “guarantee of good conduct” for submitting complaints in June. It stipulates two major conditions. A would-be complainant must pay a guarantee of 1% of the estimated value of the public procurement, up to maximum of €100,000. The law also demands the complainant proves a “legitimate interest” in the process.
The government justified the decision by saying there were too many complaints for the National Council for Solving Complaints (NCSC) to handle efficiently. The government also referred to the need for immediate new measures to make the procedure for the award of public contracts smoother and to protect contracting authorities against the submission of unfair complaints.
Another argument used by the government was the alleged abusive exercise of some economic operators, who have tried to delay the conclusion of a contract by repeatedly challenging the award procedure, despite their inability to fulfill the public contract.
The law has been widely criticised and reported to the European Commission, which is analysing it.
Lawyers and even the NCSC – the public body in charge – declared the law might violate important constitutional rights, like the right to petition and to submit complaints.
Lorand Lehel Bogdan, the president of NCSC told EURACTIV.ro that the decision was taken without proper analysis and without consulting the NCSO. The amount requested from complainants was too large and the law restricted the rights of smaller companies, he added.
In a specialised publication for the procurement market, professor and lawyer Angelica Rosu argued that the new tough requirements could have violated the Romanian constitution and EU law, causing the state more problems than it solved.
Representatives from the National Public Procurement Experts Association (ANSA), and other lawyers, have debated the issue. They agree that access to justice is restricted by the price of the guarantee. SMEs also don’t get the 50% discount they do in other similar legislation.
VassLawyers, a law firm representing several companies in the IT, construction, infrastructure, utilities, medical and defence sectors, as well as of a number of NGOs, last July lodged a complaint with the European Commission on the new legal provisions. They, “violate fundamental European principles regarding remedies in public procurement, such as the principles of effectiveness and comparability remedies, free access to remedies and to the free movement of goods and services.”
According to VassLawyers’ official statement, the complaint violates “fundamental European principles regarding remedies in public procurement, such as the principles of effectiveness and comparability remedies, free access to remedies and to the free movement of goods and services.”
The Commission hasn’t made its reaction public yet. It is highly likely that the next report under the Cooperation and Verification Mechanism (CVM), due in January 2015, will touch upon the issue.