Transcript Noutăţi aduse HG nr.925/2006 de HG nr. 834/2006

“Project Café”
July 21st, 2010, Craiova
1
GEO no. 76/2010 to amend GEO
no. 34/2006
2
Argument




3
Abusive use of the legal dispute;
Necessity to diminish the large number of
complaints;
Impossibility to conclude the contract if the NCSC
decision/Court decision has been attached;
Avoid an inappropriate behaviour of the economic
operators that protract the way of conducting the
awarding procedure.
Definitions
Acceptance of the successful tender
 communication the result of the awarding
procedure which from CA expresses its consent to
be legally engaged in a public procurement
contract that will be concluded with the tenderer
whose tender has been declared as successful
tender
4
Definitions
Tenderer
 Any economic operator which has submitted
a tender until the stipulated time limit from
the notice/invitation for participation
5
Definitions
Waiting terms
 Terms on covered by the art. 205 (1) and
art. 206 (3), after their fulfillment can be
concluded
the
contracts/framework
agreement within the provisions of the
present ordinance.
6
Definitions
Terms calculation

Term in days= starts with the first hour of the first day and
it is over at the expired last hour of the last day from the
term; (the day with an event or the day when CA carries out an act will
not be calculated).
Note:
If the last day is a legal holiday, Sunday or Saturday, term is
over then the last hour of the next working day expires.
7
Terms calculation - examples
Example : Submitting the complaint
Complaint act : Tender documentation, qualification requirements
8
Publishing date of
the contract notice
July 12th, 2010
Estimated value of
the contract
4.250.000 €
Knowledge date
July 12th, 2010
Time limit
July 19th, 2010
Conclusion
July 20th, 2010 =
tardivă
Value threshold for contract notice in OJEU
The supply
Estimated value>
Services
Estimated value>
Works
Estimated value>
Directly financed
contract / subsidized
50 % by a CA
-
193.000 €
4.845.000 €
Awarded contract by
125.000 €
125.000 €
4.845.000 €
Awarded contract by
a CA lit.d - e
387.000 €
387.000 €
4.845.000 €
Concession contract
-
-
4.845.000 €
a CA lit. a-c
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Value threshold, request for tender



For the supply contract
e V ≤100.000 €
For the services contract
e V ≤ 125.000 €
For the works contract
e V ≤ 1.000.000 €
Note: The participation invitation shall contain information
regarding the financing source
10
Annex 2 B – excepted servicies
Ensuring the implementation of the provisions from the present
ordinance:
 Principles (NEW !!!)
 Publication of the awarding notice in ESPP şi OJEU
AC lit.a – c Estimated value > 125.000 €
AC lit.d – e Estimated value > 387.000 €
 Implementation of the provisions from art. 35 - 38
11
NEW ! Guarantee for participation
 The requirement of the guarantee for
participation is mandatory
Conditions : 1. The amount lump sum up to 2 % din eV
2. Minimum availability correlated with
the tender availability
(evaluation period + solving the compliant )
12
Rules for participation
NEW !

13
Economic operator has the obligation to
comprise the list of the
affiliated
undertakings, if it exists. In the tender
NEW !
NARMPP verifies the participation
invitation before publication
14
Information notice
 eV ≥ 750.000 €/ 12 months – Products with the same
CPV (xxx00000)
 eV ≥ 750.000 €/ 12 months – Services 2 A from the
same category (1-16)
 eV ≥ 4.845.000 €/ 12 months – Works
Note : eV is the same for the contracts and for the framework
agreement
15
Media publicity contracts

Definition : a services contract for diffusion
advertisement or any other forms of
promotion by mass media (mass written,
radio, TV or electronic means)
The publication of the information notice/awarding notice at
cumulative values, without VAT > 15.000 €
(www.publicitatepublică.ro and CA webpage)
16
Conflict of interests
NEW !
1. Have no right to be involved in the
verification/evaluation of the
tenders/candidatures:

The persons from CA that are, according to the
Law
no.161/2003 in conflict of interests (transparency exercising
the public dignities, public functions and in business, prevent and
punish corruption)
17
Conflict interests
2. Excluded form procedure :



tenderer/candidates/associate
tenderer/subcontractors
which:
Are members of CA/head, shareholder/associates,
Husband/wife, relatives or in-laws up to IV degree, or
Involved in commercial relations with

the persons with decision capacity from CA
18
Negotiation without publication of the
contract notice
NEW !
1. Amend art.122. lit. c)
 CA has the right to issue a degree to start the services/works
at the same time with the procedure beginning.
2. Amend art.122 lit.i)
 Addendum to the contract value with 20 %
 Limit 50 % - is approved by the principal credit ordonateur
(explanatory note as part of the procurement folder)
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Framework agreement
CA has the right to finalize the awarding procedure:
 Through concluding the framework agreement
 Through annulment
if:
The number of qualified/selected economic operators and with
acceptable tenders
<
Minimum number from notice/participation invitation
20
Electronic auction





The final stage of:
Open procedure
Restricted procedure
Negotiation with the publication of the contract
notice - art.110 lit.a)
şi art.251 (1)
Request for tender
Note: the electronic auction is being developed in one or more
successive round
21
The personal situation of the
candidate/tenderer
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
CA has the right to exclude for the procedure the
tenderer/candidate which :

Is declared in bankrupt through a decision of a syndic judge;

Presents false information or does not present the information
required by CA, for demonstrate the qualification and
selection criteria.
Technical and/or professional ability
The list of works carried out over the past five
years confirmed by certification of satisfactory
execution.
It contains:
 Beneficiaries (private/public)
 Value
 Period şi place
 Conformity with the professional standards from the field
 If they were finished
23
Tenders evaluation

In 20 days from the opening of the
tenders
The extension of this period can be done
only one time !
Attention ! The explanatory note regarding the extension,
part of the procurement folder
24
The tender apparently with the lowest
abnormal price


25
Represents less then 85% fron the estimated value
of the contract or,
If there are at least 5 tenders unacceptable and/or
irregular and the tender price represents less then
85% from the average score of the tenders without
considering:
- The lowest financial proposal, and
- The biggest financial proposal
The tender apparently with the lowest
abnormal price
Example: Contract estimated value100.000 lei
Value
(lei)
Tender 1
Tender 2
Tender 3
Tender 4
Tender 5
50.000
57.000
60.000
77.000
85.000
OK
OK
Average
score
(lei)
64.666
85 %
From the
average
score
26
Conclusion
54.966
Price
justification
OK
OK
Annulment of the award
At contract award/framework agreement, through :
- Restricted procedure
- Competitive dialogue
- Negociation with the publication of the contract notice
If :
number of the selected candidate< minimum number from the
information notice
or:
The number of qualified economic operators and with
acceptable tenders for concluded the framework agreement
is
<
minimum
number
from
the
information
notice/participation invitation
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Annulment of the award
NEW !
Following the NCSC decision regarding :
- Removal of any technical, economical or financial
specifications, from the notice/invitation tender
documentation,
or
- Any other issued documents related to the tender
documentation
28
Concession contracts
Awarding procedures:
 Open procedure
 Restricted procedure
 Competitive dialogue
 Negotiation with the publication of the
contract (art. 110 şi art. 251alin. (1))
29
Complaints solving
NEW !
The submitted complaints through the
awarding procedure of the delegation
contracts to management a community
service for public utilities which from
the specific regulation refers to GEO no.
34/2006
30
Complaints solving
If NCSC or Court receives any complaint, for which was not taken a
withdrawal act,
CA has the right to conclude the contract only after:

NCSC decision / Court decision
 expiry of the waiting terms
Applicable for:

Contracts concluded after negotiation procedure without publication

Contracts subsequent of the framework agreement

Contracts concluded through dynamic procurement system
(if CA self willed published a notice/invitation in ESPP/OJEU and adopted by own initiative waiting terms )
31
Complaints solving
NEW !
The complainant has access to the awarding
procedure folder submitted by CA to NCSC,
except the technical proposals of the other
tenderers
Note: technical proposals of other tenderers are available only after a written
consent, the consent is annexed to the complainant`s request
32
Complaints solving
NEW !
CA has the right to send his point of view on
the complaint and the copy of the
procurement folder before the expire of the
waiting term.
33
Complaints solving

solving on the merits = 20 days since the
public procurement folder submission by CA

solving ground exception = 10 days since
the public procurement folder submission by
CA
Note : Only one extension is being admitted, with 10 days from the
initial term for solving the cases really motivated
34
Complaints solving
NCSC may:

observe the infraction of the GEO34/2006
provisions that are not stipulated in the complaint,
to NARMPP and CVUPP
NCSC may:

35
decide the contract awarding to a specific
economic operator
Complaints solving
NEW !
 The complaint rejection by NCSC
 CA reserves an amount from the participation
guarantee
If

Court admits the legal dispute against NCSC
decision
 CA returns the amount in maximum 5 working days
from the Court`s decision
36
Complaints solving
Complaints awarding procedures for
services/works National interest transport
infrastructure
The Court with competences to solve the legal dispute
against NCSC decision
=
Appeal Court Bucharest
Note: the legal dispute against NCSC is taxed
37
NEW !
Execution, null, annulment, rezolution,
cancellation of the public procurement
contracts

First are being solved by the commercial
section of the Court from CA`s location area
38
Complaints solving
The decision of the Court may be appealed within
5 days.
The appeal is being judged by the case,
 At the contentious-administrative and fiscal
section of the Court
 At the commercial section of the Court
NEW ! The appeal does NOT suspend the execution
39
Contraventions
Shall be sanctioned with a fine between:
→ 20.000 – 40.000 lei instead 10.000 - 35.000 lei
→ 40.000 – 80.000 lei instead 35.000 – 70.000 lei
→ 80.000 – 100.000 lei instead 70.000 – 100.000 lei
NOTE: The amount from the sanctions represents income to the
state budget
40
Annexes amendment

41
The amendment of the Annexes no .2A and
no. 2B according to the provisions or the
Regulation (EC) no. 213/2008 regarding CPV
Transitional provisions
42

The trials and the requests regarding the public procurement
that were being in the process of solving in Courts, at the
entry into force date of the GEO no. 76/2010, are still judged
in the conditions of the law in force at the start moment.

Starting with the entry into force data of the present
ordinance, to the solved appeals by the NCSC or the Court
from CA`s location area, the provisions of the GEAO no.
76/2010 are applied.