ROMANIAN REMEDIES SYSTEM

1. ROMANIAN REMEDIES SYSTEMSEMINAR – 11 DECEMBER 2008Şerban FiliponUniversity of Nottingham – The Public Procurement Research Group – PhD StudentWYG International Limited – Legal & Procurement Adviser

2. ROMANIAN REMEDIES SYSTEM Outline • Background of Romanian Legal System • Two Courses of Action, both under Administrative Litigation Procedure - The Administrative-Jurisdictional Course of Action - The Judicial Course of Action • Other Measures • Note: this presentation is based on the provisions of the relevant legislation, in particular, without limitation, art. 255-296 of the procurement act (EGO 34/2006 as amended), law 554/2004 on administrative litigation (as amended), a review of relevant case-law, and the research work conducted by the author under the Phare Romanian Procurement Project (2007) implemented by WYG International Limited as leader of consortium with Eversheds LLP and Deloitte Romania.

3. ROMANIAN REMEDIES SYSTEM Background of Romanian Legal System • Napoleonic Legal System (following French tradition) • Systemic approach to legal regulation: Constitutional Law; Civil Law; Commercial Law; Administrative Law; Criminal Law • Case law usually is not a source of law • Public procurement subject to administrative law and administrative litigation law

4. ROMANIAN REMEDIES SYSTEM Relevant National Legislation • EGO 34/2006 - transposing the two 2004 directives as well as the remedies directive 89/665 – amended many times, last amendment 02 December 2008 – covers procurement, utilities, concessions, remedies • Secondary legislation: implementation rules – detailing various areas of public procurement regulation • Tertiary Legislation: the Procurement Guide • Administrative litigation legislation

5. ROMANIAN REMEDIES SYSTEM Characteristics of the two courses of action: • The administrative-jurisdictional course of action - intensively used: over 5000 complaints in 2008 - first instance: the National Council for Settlement of Complaints (NCSC) - appeals: Courts of Appeal - quick procedure, short procedural time-limits - automatic suspension of the award procedure - only before a procurement contract is concluded - only to cancel or amend acts of the CA - no award of damages

6. ROMANIAN REMEDIES SYSTEM The National Council for Settlement of Complaints • main player in the procurement review system • administrative-jurisdictional institution specialised in complaints against acts issued in procurement procedures • independent institution (quasi-judicial) • issues decisions that are mandatory for the parties • decisions can be appealed before relevant courts

7. ROMANIAN REMEDIES SYSTEM Characteristics of the two courses of action • The judicial course of action - rarely used in procurement - only before courts, after submission to the CA - much longer procedural time limits - before or after the award of a public procurement contract - cancellation of an act or even of a contract - award of damages - no automatic suspension - suspension may be awarded

8. ROMANIAN REMEDIES SYSTEM The Administrative-Jurisdictional Course of Action - outline • Legal Standing • Competence • Procedure • Time-Limits • Suspension • Solutions • Appeals

9. ROMANIAN REMEDIES SYSTEM • Legal standing for remedies in procurement - Rests with the person who considers it is harmed by an act of the Contracting Authority that breached the provisions of the public procurement law - Has a legitimate interest in connection with an award procedure under the procurement law; and - Suffers, suffered or risks to suffer damage as a result of an act of the contracting authority liable of generating legal effects

10. ROMANIAN REMEDIES SYSTEM The Administrative Jurisdictional Course of Action – Competence of the NCSC • cancelling an act, modifying an act or obliging the CA to issue an act • acts cancelled or modified may not only be those challenged but also, usually, subsequent or previous ones that have a logical link with the challenged act(s) • depending on the circumstances, the NCSC may cancel the award procedure, order other correction measures, or apply fines • NCSC may not substitute the decisions that rest with the CA (e.g. the actual evaluation of offers, conclusion of contracts) • in general, limited to the requests in the complaint • only in connection with procurement procedures under the procurement act (refer, for example to case 183/4C4/151 of 2006)

11. ROMANIAN REMEDIES SYSTEM The Administrative Jurisdictional Course of Action – Procedure (i) – initiation • Submission of a complaint to the NCSC and to the Contracting Authority (CA) within the relevant time limits • Content of complaint - Parties; object; motivation in fact and in law; request; evidence

12. ROMANIAN REMEDIES SYSTEM The Administrative Jurisdictional Course of Action – Procedure (ii) – CA action • Obligation to inform the other tenderers • Right to take measures to correct the challenged acts  if tenderer is satisfied withdraws its complaint • Obligation to express its opinion and submitting it to the NCSC (cc to the complainant) together with the entire procurement file

13. ROMANIAN REMEDIES SYSTEM The Administrative Jurisdictional Course of Action – Procedure (iii) – before the NCSC • Panels of three councillors – at least the Chairman has legal background • Mainly in writing – hearings only if decided by the NCSC • Specialised expertise, if requested and approved by the CNSC • First assessment of procedural incidents: late submission; standing; competence; lack of object • If admissible  analysis on the merits (consideration of evidence and application of the relevant law)

14. ROMANIAN REMEDIES SYSTEM The Administrative Jurisdictional Course of Action – Procedure (iv) – short time-limits • 5 or 10 days for submission of complaints but no later than: deadline for submission of tenders / end of standstill periods • 1 day to CA to inform other tenderers about the complaint • 1 day for CA to inform about corrective measures • 3 days for CA to express its opinion and submit the procurement file to the NCSC • 5 days for complainant to respond the clarifications from the CNSC • 20 (+10) for NCSC to decide

15. ROMANIAN REMEDIES SYSTEM The Administrative Jurisdictional Course of Action – automatic suspension (i) • Advantages / disadvantages • Courses of actions that tenderers may take - submit a complaint just to buy time to prepare their tender - “blackmailing” the CA or successful tenderer – in particular where there is budgetary or programming time-limit for contracting

16. ROMANIAN REMEDIES SYSTEM The Administrative Jurisdictional Course of Action – automatic suspension (ii) • Evolution of regulation - EGO 34/2006 – initial regulation: pure automatic suspension - EGO 94/2007 – additional procedure for automatic suspension to operate / incrimination of abusive exercise of the right to challenge - EGO 143/2008 – change of start dates / end dates • Lifting the suspension: may be awarded if requested by the parties in special circumstances (e.g. extreme urgency)

17. ROMANIAN REMEDIES SYSTEM The Administrative Jurisdictional Course of Action – automatic suspension (iii) • Conclusion of contract during the suspension period / standstill periods  contract automatically null and void • Any solutions if suspension or standstill periods, for example, prevent contract from being concluded before a budgetary or programming time limit for contracting? • Contract with suspension clause: - contract signed but not in force until a future and uncertain event happens (for example, non-submission of a complaint); - if event happens  contract in force retrospectively from the date of signature; - if not  contract has never existed

18. ROMANIAN REMEDIES SYSTEM The Administrative Jurisdictional Course of Action – solutions • Rejection of complaint due to incidents or if complaint not substantiated on the merits • Admission of complaint and: - cancellation of an act (and of previous or subsequent acts) - amendment of an act - obligation to issue an act - cancellation of the award procedure - taking note of withdrawal of complaint

19. ROMANIAN REMEDIES SYSTEM The Administrative-Jurisdictional Course of Action – appeals • 10 days of communication • Court of Appeal in whose jurisdiction is the head-office of the CA • No automatic suspension of the award procedure or of the NCSC’s decision (can be awarded if requested) • Decision in the appeal is final

20. ROMANIAN REMEDIES SYSTEM The Judicial Course of Action – General • Rarely used in procurement • Pre-condition: complaint to the CA • If CA does not respond within time-limit or response unsatisfactory  to the relevant administrative litigation Court (Tribunal or Court of Appeal) • Appeals to the relevant higher courts (Court of Appeal or the Supreme Court) • No automatic suspension but suspension may be awarded • Procedure mainly oral

21. ROMANIAN REMEDIES SYSTEM The Judicial Course of Action – Time-Limits • 30 days (or up to 6 months in special circumstances) to lodge the prior complaint to the CA • 30 days for CA to respond to the prior complaint • 6 months (or up to 1 year in special circumstances) • No specified time limits for settlement of the case

22. ROMANIAN REMEDIES SYSTEM The Judicial Course of Action – Potential Uses • Where the tenderer missed the short time-limits of the administrative-jurisdictional course of action • Where a procurement contract was already concluded • Where award of damages is sought (if the complainant had a real chance of winning the tender) • Where the rights of a third party are harmed in connection with a procurement procedure (e.g. owner of land to be used for a motorway concession)

23. ROMANIAN REMEDIES SYSTEM Other measures • Ex-ante controls – Ministry of Finance • Application of fines by the Procurement Authority

24. ROMANIAN REMEDIES SYSTEM Thank you! Questions?