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In an attempt to bring clarity and a predictable framework for contracting authorities implementing changes to public procurement and sectoral contracts, Romania's national authority for public procurement (ANAP) published new Guidelines in January 2021, which identify EU and national rules and practice on the topic.
Although the Guidelines are not entirely new, as they reiterate and highlight the legal rules for amending public procurement and sectoral contracts, they represent a practical guide for public authorities and private operators alike when contemplating making necessary changes to contracts on on-going projects.
The Guidelines offer over 40 practical examples, specific to each type of contract modification, and also procedural guidance on enforcement of rules, including:
Despite the Guidelines' obvious benefits, important stakeholders have questioned the legality of some of the provisions.
The Federation of Employers of Construction Companies (Federatia Patronatelor Societatilor din Constructii or FPSC) released an official statement (available, in Romanian here) in which they expressed disagreement and dissatisfaction with the content of the Guidelines, alluding to successful challenges in court for similar provisions in former guidelines issued by the ANAP in the past.
The public statements of the FPSC, a strong stakeholder in the Romanian public procurement infrastructure market, cast doubt on the future enforceability of the ANAP Guidelines.
For now, all interested stakeholders should try to view the live sessions (for more information click here), which the ANAP has promised to organise in order to clarify the new Guidelines. The sessions may provide an opportunity to seek clarification and changes to controversial provisions, which could impact the enforcement practices of contracting authorities or entities when attempting to make changes to public procurement contracts.
For more information on these Guidelines and public procurement in Romania, contact your CMS client partner or local CMS experts: Horia Draghici, Cristina Popescu and Laura Capata.
NOTES TO EDITORS
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