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“Project Café” July 21st, 2010, Craiova

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

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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.

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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

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Definitions

Tenderer Any economic operator which has

submitted a tender until the stipulated time limit from the notice/invitation for participation

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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.

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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.

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Terms calculation - examples

Example : Submitting the complaint Complaint act : Tender documentation, qualification requirements

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

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Value threshold for contract notice in OJEU

The supplyEstimated

value>

ServicesEstimated value>

WorksEstimated value>

Directly financed contract /

subsidized 50 % by a CA

- 193.000 € 4.845.000 €

Awarded contract

by a CA lit. a-c 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 €

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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

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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 OJEUAC lit.a – c Estimated value > 125.000 €

AC lit.d – e Estimated value > 387.000 €

Implementation of the provisions from art. 35 - 38

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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 )

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Rules for participation

NEW ! Economic operator has the obligation

to comprise the list of the affiliated undertakings, if it exists. In the tender

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NEW !

NARMPP verifies the participation invitation before publication

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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

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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)

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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)

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Conflict interests2. 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

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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

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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

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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.

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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

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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

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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

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The tender apparently with the lowest abnormal price

Example: Contract estimated value100.000 lei

Tender 1 Tender 2 Tender 3 Tender 4 Tender 5

Value (lei)

50.000 57.000 60.000 77.000 85.000

Average score(lei)

64.666

85 % From the average

score

54.966

Conclusion

Price justification

OK OK OK OK

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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 The number of qualified economic operators and with acceptable tenders for concluded the framework acceptable tenders for concluded the framework agreement isagreement is << minimum number from the information minimum number from the information notice/participation invitationnotice/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

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Concession contracts

Awarding procedures: Open procedure Restricted procedure Competitive dialogue Negotiation with the publication of the

contract (art. 110 şi art. 251alin. (1))

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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

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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 )

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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

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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.

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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

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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

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Complaints solving

NEW ! The complaint rejection by NCSC CA reserves an amount from the participation

guaranteeIf

Court admits the legal dispute against NCSC decision

CA returns the amount in maximum 5 working days from the Court`s decision

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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

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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

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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

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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

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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

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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.