This exception has been decided by the Government through an emergency ordinance that amends the Law on public-private partnership.
The current law says partnership contracts must be awarded through an open auction or competitive dialogue. The ordinance says the Government reserves the right to increase the value of a contract already awarded to an investor, simply by negotiation and without a new auction.
The value would be raised in order to cover additional work or services not provided by the initial contract, but which have become necessary because of an unexpected turn of events. The additional services may not be technically or economically separated from the initial contract without being “a major inconvenience” to the public partner and must be “strictly necessary” to the project’s completion.
The combined value of additional work/services may be up to 50% of the initial value.
The Government made a similar decision last year concerning public procurement: the relevant law was amended to allow the state to raise the value of a contract by up to 50% in “serious” circumstances.
The new ordinance also says that a public partner which perceives that an offer is “unusually low,” because the private investor is a beneficiary of state aid, may not reject the offer purely for this reason, except when it consults the investor and the investor is unable to prove the aid does not constitute unfair competition between bidders.
The current law on public-private partnership allows the Government to reject a bid considered “unusually low” and which an evaluation suggests would be impossible to support by the investor. An “unusual bid” according to the law on public procurement is one where the price is less than 85% of the contract’s estimated value, without VAT.
Considering that a public-private partnership contract is awarded to the offer presenting the best economic advantage, the ordinance says that public partners may authorize the private investors to present “alternative offers.”
The act also says private investors may not be rejected purely because, in accordance with Romanian law, they are required to be legal persons.
“Any private investor has the right to take part, individually or in a group, in the selection procedure. To submit an offer or a letter of intent, public partners may not require groups of private investors to have a certain legal status, but the selected group will be required to attain a certain legal status in case it is awarded the contract, as long as this transformation is necessary to the contract’s proper implementation,” says the ordinance.
Legal persons will have to state the name and professional qualifications of the people in charge of the project’s implementation, in their offers or letters of intent.