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1 “Project Café” July 21 st, 2010, Craiova. 2 GEO no. 76/2010 to amend GEO no. 34/2006.

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Presentation on theme: "1 “Project Café” July 21 st, 2010, Craiova. 2 GEO no. 76/2010 to amend GEO no. 34/2006."— Presentation transcript:

1 1 “Project Café” July 21 st, 2010, Craiova

2 2 GEO no. 76/2010 to amend GEO no. 34/2006

3 3 Argument 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.

4 4 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

5 5 Definitions Tenderer  Any economic operator which has submitted a tender until the stipulated time limit from the notice/invitation for participation

6 6 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.

7 7 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.

8 8 Terms calculation - examples Example : Submitting the complaint Complaint act : Tender documentation, qualification requirements Publishing date of the contract notice July 12 th, 2010 Estimated value of the contract 4.250.000 € Knowledge dateJuly 12 th, 2010 Time limitJuly 19 th, 2010 ConclusionJuly 20 th, 2010 = tardivă

9 9 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 a CA lit. a-c 125.000 € 4.845.000 € Awarded contract by a CA lit.d - e 387.000 € 4.845.000 € Concession contract - - 4.845.000 €

10 10 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

11 11 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

12 12 NEW ! Guarantee for participation  The requirement of the guarantee for participation is mandatory Conditions : 1. The amount lump sum up to 2 % din e V 2. Minimum availability correlated with the tender availability (evaluation period + solving the compliant )

13 13 Rules for participation NEW !  Economic operator has the obligation to comprise the list of the affiliated undertakings, if it exists. In the tender

14 14 NEW ! NARMPP verifies the participation invitation before publication

15 15 Information notice  e V ≥ 750.000 €/ 12 months – Products with the same CPV (xxx00000)  e V ≥ 750.000 €/ 12 months – Services 2 A from the same category (1-16)  e V ≥ 4.845.000 €/ 12 months – Works Note : e V is the same for the contracts and for the framework agreement

16 16 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)www.publicitatepublică.ro

17 17 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)

18 18 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

19 19 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)

20 20 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

21 21 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

22 22 The personal situation of the candidate/tenderer 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.

23 23 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

24 24 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

25 25 The tender apparently with the lowest abnormal price 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

26 26 The tender apparently with the lowest abnormal price Example: Contract estimated value100.000 lei Tender 1Tender 2Tender 3Tender 4Tender 5 Value (lei) 50.00057.00060.00077.00085.000 Average score (lei) 64.666 85 % From the average score 54.966 Conclusion Price justification OK

27 27 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

28 28 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

29 29 Concession contracts Awarding procedures: Open procedure Restricted procedure Competitive dialogue Negotiation with the publication of the contract (art. 110 şi art. 251alin. (1))

30 30 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

31 31 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 )

32 32 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

33 33 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.

34 34 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

35 35 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 :  decide the contract awarding to a specific economic operator

36 36 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

37 37 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

38 38 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

39 39 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

40 40 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

41 41 Annexes amendment The amendment of the Annexes no.2A and no. 2B according to the provisions or the Regulation (EC) no. 213/2008 regarding CPV

42 42 Transitional provisions 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.

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