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Ways of challenging the awarding of a public procurement contract for the performance of infrastructural construction works

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The legal framework in Romania as to the means and procedures for awarding a public procurement contract consists of the Emergency Govern Ordinance no 34/2006 (“EGO no 34/2006”) which transposes the relevant European regulations in this field. Hence, all the Romanian contracting authorities are bound to regularly observe and implement the provisions of EGO no 34/2006 when awarding a public procurement contract for the performance of infrastructural construction works such as building motorways, national roads, bridges, railways etc.
However, when said objectives are financed by the European Development Fund pursuant to the regulations of the European Commission, the procedure of awarding the public procurement contract is governed by specific European guidelines which apply directly and derogate from the provisions of EGO no 34/2006, for the main reason that this lastly mentioned ordinance does not regulate the proceedings for awarding contracts financed by foreign grants.
For instance, pursuant to Emergency Govern Ordinance no 72/2007, with respect to awarding the works contracts relative to the construction of the motorways Arad-Timişoara-Lugoj and Cernavodă-Constanţa financed by the European Investments Bank, the provisions of the European Investments Bank’s procurement guide shall apply directly, instead of the ones of EGO no 34/2006.
Another European legislative instrument that may apply directly in connection to public procurement awarding on European funds in Romania is the Practical Guide to Contract Procedures for EC external actions (“PRAG”), which is to be found here.
We shall try and draw herein a parallel between the provisions of PRAG and the ones of EGO no 34/2006 in respect of the means of challenging the allegedly erroneous resolutions or measures taken by the contracting authority within the process of awarding works contracts.
For the case EGO no 34/2006 is the applicable regulation, the tenderers believing that their rights have been harmed by an error or irregularity committed by the awarding authority (in the field of awarding contracts for infrastructural construction works this regularly is the Romanian National Company of Motorways and National Roads or the National Railway Company) during the award process, shall have the possibility to challenge the harmful actions by way of an administrative complaint addressed to the National Council for Solving Contestations (“CNSC”) or by petitioning directly the contracting authority. Afterwards, should the complainant not be satisfied with the solution pronounced by CNSC/the contracting authority, he may take action in court pursuant to the specific provisions of law on administrative disputes.
On the other hand, should the provisions of PRAG be applicable, the tenderer involved in an international tendering procedure may petition the contracting authority directly in case the first is not satisfied with the measures taken by the latter. If doing so, the complainant has to inform the European Commission about his decision of challenging the actions of the contracting authority in order for the Commission to supervise and facilitate an amicable solution. In case this procedure fails, the tenderer may have recourse to procedures established under the national legislation of the contracting authority.
Thus, once the procedure of appeals established under PRAG is consumed without any satisfaction for the complainant, such has the means of resorting to the provisions of EGO no 34/2006 regarding the administrative/judicial procedure for settling the irregularities occurred within a tendering process.
Unfortunately, reaching this stage, the bidder involved in an international tender carried out in Romania still faces a dilemma caused by the subsequent applicability of EGO no 34/2006: under the circumstances were the bidder has previously petitioned the contracting authority and the European Commission under PRAG, is he further entitled to serve his complaint either to CNSC or to the court, or does he have the single choice of going to court?
There were cases when the tenderers that were not satisfied with the way their complaint was solved pursuant to PRAG addressed themselves to CNSC, as per the provisions of EGO no 34/2006. However, this latter authority did not consider itself competent to solve the issue and, therefore, passed the file further onto the court.
It is to be noticed that there is still a need for new local regulations, harmonizing the European legislation with the Romanian one, to be enacted, mainly for the reason that it is still unclear for the local authorities and courts of justice and also for the investors/developers interested in getting involved in public procurement procedures when do they have to observe the domestic law and when the European one or how to combine them.

Ionut Cazacu

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