românăSince Romania was hit by the Covid crisis we have started to look more carefully into public procurement. We were expecting increased acquisitions of supplies of first necessity in this period. We are aware of the fact that many products are almost out of the market while the ones which are still available are expensive.
Still, what do we do with the rest of procurements? Do we postpone, reduce them or on the contrary we try to keep up the pace? In case of a state of emergency, namely a special situation, do we still use the rules (laws) we normally use or we can acquire the products “directly”?
Social media is full of pros and cons so we thought we could bring some light starting from the legal provisions in force.
Law 98/2016 on public procurement (the same as Law 99/2016 on sectorial procurement) sets out very clear procedures regarding the procurement of goods/services/works in such situations of first necessity. It refers to procurements through negotiated procedure without the publication of a call for papers, set out in art. 104, paragraph (1), lett. c.
“Contracting authority has the right to apply the procedure of negotiation without a prior publication of a request for participation to award public procurement contracts/framework agreements for works, goods or services in either of the following cases:
[…]
c) as a strictly necessary measure when the timeframes to apply the open tender procedures, restricted procedures, competitive negotiation or simplified procedures cannot be observed for reasons of extreme urgency caused by unpredictable events and which can under no circumstances be attributed to an action or inaction of the contracting authority. The contracting authority may organize public procurement in parallel with applying the negotiated procedure without the prior publication of a request for participation, in case immediate intervention is required.
What does this mean? It means that goods, services and works can be acquired (irrespective of the amount of money!) when unpredictable events occur and such acquisitions cannot be made in the classical manner, by publishing an announcement on SEAP/SICAP (public procurement portal), but by transmitting an invitation accompanied by a brief documentation, to one or several economic operators. How do you choose economic operators? The law does not stipulate anything but nothing prevents you from advertising through any means, on your own website, in the social media, press and so on. Certainly you send the invitation to economic operators as well. The procedure can be put into place with celerity since the law stipulates no deadlines. The only obligation of the procuring authority is to publish an award announcement.
However, in this period, under the Presidential Decree on the state of emergency established throughout the Romanian territory, the contracting authorities/entities foreseen under art. 10 and art. 28 of the said decree acquire directly materials and equipment needed to fight the COVID-19 epidemic. Also, it was established that the prices of the medicines procured by the sanitary units to tread COVID-19 patients can exceed the maximal prices approved by the Ministry of Health.
A remark in necessary here: not all the authorities can apply this procedure!
Therefore, only certain authorities: central public authorities, entities where the state holds the majority of shares, sanitary units, public health directorates, ministries with their own health systems – only such authorities can procure by means of “direct procurement procedure” materials and equipment needed to fight the epidemic.
For instance, town halls and county councils cannot apply this “direct procedure”.
It is not very clear to me how this direct acquisition can be made, what the difference is from a negotiated procedure without publication, taking into consideration the fact that even in such a situation a duly substantiation is mandatory even though we speak of the way the respective procurement contributes to fighting the COVID-19 epidemic.
It seems that even for the ANAP president this aspect was not very clear since he posted on
the ANAP Facebook page the following message which was later on deleted:
On March 16, 2020 ANAP published a notification on the public procurement foreseen in the Decree of the President of Romania on the state of emergency established throughout the Romanian territory. According to this notification, in the view of monitoring the procurements made while the Decree is in force, the contracting authorities put at ANAP’s disposal information according to the table below, in an Excel spreadsheet, within maximum 30 work days following the end of the decreed period.
| Crt. No. | Contracting authority/entity | Economic operator | Legal commitment | Value of procurement | Object of procurement |
| 1. |
I cannot help but wondering why such information should be published only after 30 work days following the end of the decreed period. Why can’t this information be published within a shorter, reasonable period of time, to allow ANAP to intervene in case of any potential breach of law?
Moreover, though, I wonder why there is no obligation to make such information public. In the end, isn’t this about public procurement? Even if we speak about
procurement made under special circumstances.
Unfortunately, the mere regulating institution, ANAP, is almost invisible. I was expecting ANAP to issue a notification by means of which to answer at least the legitimate questions of those who organize procurements:
- What happens in case the bid(s) exceeds the estimated value of the procurement beyond the limit set out in Law 98/2016, respectively of 10% for goods and services and 15% for works? If I were to refer strictly to goods, can an authority afford to cancel a procedure should the suppliers’ stocks drop rapidly?
- What happens to the suppliers that do not fulfill their contracts? Wouldn’t it have been a good idea to enforce the obligation of issuing duly substantiating documents for such contracts?
- Which are the public authorities/entities that can procure in accordance with the Presidential Decree? There are many public authorities, such as town halls and county councils that may not apply this procedure.
On April 02, 2020, on the European Union’s website was published a practical guidance regarding the use of flexibilities which are available under the EU public procurement framework.
Some of the Commission’s recommendations:
Therefore, for cases of extreme urgency, a negotiated procedure without publication can be envisaged, providing a number of details and clarifications with regard to the interpretation of various situations.
Concretely, the negotiated procedure without publication allows public buyers to acquire supplies and services within the shortest possible timeframe. In accordance with Art. 32 of Directive 2014/24/EU, public buyers may negotiate directly with potential contractor(s) and there are no publication requirements, no time limits, no minimum number of candidates to be consulted, or other procedural requirements.
There are no procedural stages regulated at EU level. In practice, this means that authorities can act as quickly as is technically/physically feasible – and the procedure may constitute a de facto direct award only subject to physical/technical constraints related to the actual availability and speed of delivery.
A direct award to a preselected economic operator remains as an exception, taking into account the derogation from the basic principle of the Treaty concerning transparency;
However I would say that the most important thing is the fact that the negotiated procedures without prior publication provide the possibility to address certain immediate needs. They fill in the gaps until more stable solutions can be found, such as framework-agreements for goods and services awarded by means of existing regular procedures (including accelerated procedures).
In other words, this special procedure is applicable for a very short period of time and not continuously, for as log as the state of emergency continues.
Conclusions:
- Presidential Decree no. 195 established a procurement procedure only for certain contracting authorities and only for the acquisition of certain materials and equipment necessary to fight the Covid pandemic;
- The direct procurement procedure (referred to in the decree) differs from the negotiated procedures without prior publication (as set out in the Directive and in Law 98/2016) only in terms of transparency. Both procedures are very fast and are initiated by drafting a supporting document on the state of urgency and necessity, they take place in a very short period of time (days/hours), and one or several economic operators can be invited to these procedures. The difference is only in terms of transparency: in the case of negotiation without publication the contracting authority has the obligation to publish an award announcement in SEAP, while in the case of a direct procurement, ANAP is communicated within 30 work days following the end of the state of emergency.
- There is a major confusion at the level of local authorities with regard to the possibility to make acquisitions based on Decree 195; many town halls acquire directly both goods and services and works.
- Acquisitions are made without budget lines provided for them.
In my opinion, ANAP should urgently clarify the procurement modalities by means of an instruction pertaining to the award procedure that should be applied by the contracting authorities/entities set out in Decree, but also by those not set out therein, both for goods and for services and works, while clearly stipulating the terms and, especially, the obligation to observe transparency.
It think that, now more than ever, ANAP must get involved and be the regulating body.
