Regulatory Framework and Methodological Norms for Public Procurement in Romania

Institutional Framework and Auxiliary Procurement Services

In accordance with the regulatory framework governing public procurement, contracting authorities are empowered to acquire consultancy services, or auxiliary procurement services, to support their internal specialized departments. These services are designed to assist in the elaboration of the documentation necessary for every stage of the procurement process and to help implement programs centered on the prevention and mitigation of risks. This support extends from the initial planning and preparation of the process to the organization and application of the awarding procedure, and concludes with the monitoring of contract implementation. The scope of these services also includes activities related to the evaluation commission and the resolution of any legal challenges or contests that may arise during the process.

The Necessity Report and Internal Planning

The necessity report is defined as an internal document issued by each individual compartment within a contracting authority during the last quarter ($IV$) of the current year for the upcoming year. This document must clearly identify the required products, services, and works, while providing an estimated unit and total price for each identification. If a need is unpredictable or cannot be identified during the final quarter of the year, a necessity report may be elaborated at the exact moment the need is identified. These reports can be modified at any time prior to the initiation of the awarding procedure, provided that enough time is allowed for the modification and approval of the annual procurement program. Furthermore, the specialized internal procurement department must be notified in a timely manner to ensure all necessary diligence is performed for the acquisition.

Strategic Tools and National Agency Oversight

The President of the National Agency for Public Procurement (ANAP) may issue orders to provide contracting authorities and auxiliary service providers with a specific set of instruments. These tools are intended for the planning of the procurement portfolio at the institutional level, the substantiation of decisions to proceed with a procurement process, and the monitoring of contract implementation. Additionally, these instruments are vital for the prevention and reduction of risks associated with public acquisitions. Overall responsibility for decisions and measures taken regarding electronic procurement lies with the contracting authority, while the technical functionality of the electronic system falls under the responsibility of the system operator.

Registration and Operations within SEAP

All contracting authorities and economic operators wishing to participate in awarding procedures must request registration or renewal of their registration in the Electronic System for Public Procurement (SEAP). This process must follow the electronic procedure implemented by the SEAP operator, which is reviewed by ANAP. Detailed procedural instructions for registration, renewal, and recovery are published on the official website $www.e-licitatie.ro$. Participants are legally responsible for the accuracy of the data submitted and must inform the SEAP operator of any changes to their information within a maximum of $3$ working days from the date the change occurred.

Stages of the Public Procurement Process

The awarding of a public procurement contract or a framework agreement is the culmination of a process containing three distinct stages. The first stage is the planning and preparation phase. The second stage involves the organization of the procedure and the actual awarding of the contract or framework agreement. The third and final stage is the post-award phase, which encompasses the execution and monitoring of the implementation of the contract or framework agreement. The planning stage officially begins with the identification of needs and the drafting of necessity reports, ending once the head of the contracting authority or the centralized procurement unit approves the award documentation and the specific contracting strategy.

Contracting Strategy and Value Thresholds

A contracting strategy is a mandatory document for any procurement procedure where the estimated value meets or exceeds the thresholds established in Article $7$ paragraph ($5$) of the Law. This strategy serves to document decisions regarding the relationship between the object of the contract, its constraints, and its complexity compared to available institutional resources. It must also outline the chosen awarding procedure, special awarding modalities, the proposed contract type, and the implementation methodology. Furthermore, it details payment mechanisms, risk allocation, risk management measures, and the establishment of penalties for non-performance.

Annual Strategy and Institutional Approaches

Contracting authorities must choose one of three approaches to conduct procurement: using their own existing professional resources, resorting to centralized procurement units established by Government decision under Article $40$ of the Law, or using a legally selected procurement service provider. If an authority plans to launch processes with cumulative capital expenditures exceeding $125,000,000$ lei within a single budget year, they must develop an annual public procurement strategy. This strategy must be elaborated in the last quarter of the year preceding the target budget year and requires approval by the head of the authority. Modifications to this annual strategy are permitted if financing sources are identified for any new needs being introduced. The strategy must consider identified needs, estimated values, existing professional capacity, and the necessity for additional external resources.

The Annual Public Procurement Program

The Annual Public Procurement Program (P.A.A.P.) serves as a managerial tool for planning and monitoring the procurement portfolio. It is initially drafted in the fourth quarter ($IV$) and includes all contracts and framework agreements intended for the following year. When establishing this program, the authority must consider objective product and service needs, priority levels, and anticipated financing sources. Once the budget is approved, the program must be updated to align with the authorized funds. Each entry in the program must include the object of the contract, the Common Procurement Vocabulary (CPV) code, the estimated value in lei excluding VAT, the source of funding, the procedure type, estimated dates for initiation and awarding, the modality of the procedure (online or offline), and a unique identification code. Authorities are required to publish semi-annual extracts of this program and any modifications in SEAP within a specific timeframe.

Market Consultation and Preliminary Interaction

Prior to initiating an awarding procedure, contracting authorities may engage in market consultations to prepare the acquisition and inform economic operators about their plans and requirements. During these consultations, authorities may solicit or receive opinions, suggestions, or recommendations from independent experts, public authorities, or economic operators. These inputs can cover market structure, price trends, technical aspects, innovative solutions, social integration, or environmental protection. The authority may choose to adopt these suggestions if they do not distort competition or violate transparency and non-discrimination principles. These interactions can take the form of individual meetings, joint meetings, or open events to discuss the provided recommendations.

Award Documentation and General Considerations

The award documentation is a comprehensive set of files comprising the European Single Procurement Document (DUAE), the instructions for bidders/candidates, the technical specifications (or the descriptive document for complex procedures like competitive dialogue or innovation partnerships), the draft contract with mandatory clauses, and various forms and models. This documentation must provide complete, correct, and explicit information to ensure bidders understand how to apply for the procedure. The instructions must detail formalities, the structure of information to be presented, procedural details regarding guarantees, technical and financial proposal structures, the awarding criteria, procedural deadlines, and available legal remedies. This information serves as the basis for SEAP to automatically generate the participation notice.

DUAE and Framework Agreement Specifics

Contracting authorities must electronically generate the DUAE, pre-filled with the necessary information regarding the qualification and selection criteria. This document must be attached to SEAP alongside other acquisition documents. There must be a direct correlation between the information in the participation notice and the fields marked in the DUAE; if discrepancies exist, the notice prevails. For framework agreements, the participation notice must include specific details such as the estimated number of economic operators involved, options for awarding subsequent contracts with or without reopening competition, frequency of awards, and estimates of the minimum and maximum quantities expected over the duration of the agreement. It must also provide an estimate of the value for the largest single subsequent contract and the maximum total value of the entire framework agreement.