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Government Ordinance  no. 20 of 24 January 2002 concerning public acquisitions by means of electronic bids



In accordance with the provisions of article 107 of the Romanian Constitution and of art. 1, indent VI.4 from Law no. 751/2001 concerning the ability of the Government to issue ordinances,

The Romanian Government hereby adopts the present ordinance:

CHAPTER I: GENERAL PROVISIONS

Art. 1. This ordinance is aimed at establishing the principles, the general framework and the conditions of utilisation of the on-line procedure for awarding public acquisition contracts, as well as general regulations for ensuring transparency in the public acquisitions domain by electronic means.

Art. 2. The principles grounding the awarding of the public acquisition contracts by on-line procedure are the following ones: 
a) Free competition, respectively, ensuring the conditions so that every person supplying goods, executing works or delivering services, irrespective of nationality, may be entitled to become, in accordance with the law, a contracting party;
b) Efficient utilisation of public funds, respectively, the utilisation of the competition system and of economic criteria for awarding the public acquisition contract;
c) Transparency, respectively, placing at the disposal of all interested parties information concerning the application of the procedure for awarding the public acquisition contract;
d) Equal treatment, respectively, the non-discriminatory application of the selection criteria and of the criteria for awarding the public acquisition contract, so that every person supplying goods, executing works, or delivering services may have equal chances to be awarded the respective contract;
e) Confidentiality, respectively, the guarantee of the protection of commercial secrets and of intellectual property belonging to the bidder.

Art. 3. Within the meaning of the present ordinances, the terms below are defined as follows: 
a) On-line procedure – the utilisation, in part or in whole, of the technical facilities offered by the Public Acquisition Electronic System for awarding a public acquisition contract;
b) Public Acquisition Electronic System – that computerised system of public utility, available by Internet at the address www.e-licitatie.ro and operated by a public authority in order to facilitate the transparency, correctness, and efficiency in the public acquisition domain, hereinafter referred to as Electronic System. 

Art. 4. This ordinance is completed by the legal provisions concerning public acquisitions and by the legal provisions concerning the conclusion, validity and effects of juridical acts. 

Art. 5. The contracting authorities obliged to apply the provisions of the present ordinance, the products, services, and works which are to be acquired by electronic bid, as well as the value thresholds up to which this ordinance is applied are established by Government decision. 

Art. 6. (1) The contracting authority applying the procedure of electronic bid in case of awarding a certain public acquisition contract has the obligation to specify that in the participation announcement, and also the stages of the procedure not to take place on-line, if necessary. 

(2) The application of the electronic bid procedure, once established by publishing the participation announcement, cannot be revoked during the entire period of application of the procedure of awarding the public acquisition contract.

Art. 7. The contracting authority has the obligation to ensure the observance of the free competition, transparency, equal treatment, and confidentiality principles in the relationship with the suppliers, executors or deliverers interested to participate to the procedure for awarding a public acquisition contract by electronic bid.

CHAPTER II: CONDITIONS FOR PARTICIPATION TO THE ELECTRONIC BID PROCEDURE 

Art. 8. Any supplier, executor, or deliverer, natural or legal person, is entitled to participate, in the conditions set forth by this ordinance, to the procedure of awarding by electronic bid of public acquisition contracts (hereinafter referred to as the electronic bid procedure); the foreign supplier, executor, or provider benefit in Romania of the same regime concerning participation as do the Romanian suppliers, executors, or deliverers in the country where the foreign supplier, executor, or deliverer is resident.

Art. 9 (1) The participation at the electronic bid procedure can be made only after the registration with the Electronic System.

(2) The conditions and the procedure for registration are established by the Electronic System operator.

(3) Any supplier, executor, or deliverer is entitled to request the registration with the Electronic System. 

(4) The registration as supplier, executor or deliverer with the Electronic System shall be refused and, if granted, shall be cancelled or revoked, in the case where the candidate is in one of the following situations:
a) Is bankrupt or in liquidation, his business is administered by a syndic judge or his commercial activities are suspended or he is in a similar situation, as stipulated by law;
b) Constitutes the object of a legal procedure to be declared in one of the situations mentioned in indent a);
c) Has not made the due payment of taxes and duties to the state and of the contribution to state social insurance;
d) Gives false statements in the documents presented;
e) Violates the procedures established by the Electronic System operator.

(5) If one of the situations specified in paragraph (4) indents a), b), or c) occurs after being registered as supplier, executor, or provider the natural person involved, respectively the legal representative of the legal person, has the obligation to notify the operator of the Electronic System in this respect within 24 hours. 

(6) All the contracting authorities established in accordance with art. 5 are obliged to be registered with the Electronic System.

Art. 10. (1) The operator is entitled to request to any supplier, executor, or provider soliciting the registration in the Electronic System to present documents proving a form of registration as legal person or of registration / attestation or the affiliation, from the professional point of view, in accordance with the legal provisions in Romania or in country where he lives, as the case may be.

(2) Any supplier, executor, or deliverer registered with the Electronic System has the obligation to communicate to the operator within 3 days any modification of the documents specified in paragraph (1).

Art. 11. (1) At the registration with the Electronic System, any supplier, executor, or provider has to pay a registration fee, the amount of which is established by the Electronic System operator.

(2) The amount of the fee specified in paragraph (1) cannot exceed the administrative costs of this operation.

(3) The fee specified in paragraph (1) will constitute revenue to the budget of the Electronic System operator.

Art. 12. In order to facilitate certain market studies, the Electronic System operator shall establish the conditions of establishment and utilisation of an electronic system of products classification allowing the presentation of the results of the transactions successfully concluded.

CHAPTER III: ELECTRONIC BID PROCEDURE

Section 1: General Aspects

Art. 13. The contracting authorities are obliged, under the conditions set forth in art. 5, to apply the provisions of this chapter for awarding any public acquisition contract, with the exception of the situations specified in art. 6, paragraph 4, art. 7 and 8 of the Government Emergency Ordinance no. 60/2001 concerning public acquisitions.

Art. 14. The procedure of electronic bid has the following stages, as the case may be:
a) Publishing of the participation announcement;
b) Registration of the candidates;
c) Pre-selection of the candidates;
d) Communication of the documentation for the elaboration and submission of the offer;
e) Evaluation of the offers;
f) Communication of the evaluation result;
g) Conclusion of the contract;
h) Publication of the announcement of awarding the contract.

Art. 15. (1) Any contracting authority determined according to art. 5 has the obligation to make public, by electronic means, the intention to make public acquisitions, purpose in which it has to publish an announcement of intent in the Electronic System.

(2) The announcement of intent will be published separately for products, works and services, within at most 30 days from the date of the approval of the contracting authority’s budget.

(3) The announcement of intent must include at least all the public acquisition contracts anticipated to be awarded by the end of the budgetary year and the approximate value of which, without VAT, is equal or higher that the equivalent in ROL of 100.000 EURO. For contracts the estimate value of which, without VAT, is smaller than the equivalent in ROL of 100.000 EURO, the publishing of the announcement of intent is optional.

(4) The publication of the announcement specified in art. 1 does not create for the contracting authority the obligation to make that public acquisition.

(5) The contracting authorities performing relevant activities in public utility sectors are exempted from the provisions of paragraph (2), in the sense that they have the right to transmit for publication the announcement of intent during the entire period of the year.

Section 2: Publication of the Participation Announcement

Art. 16. In order to ensure the highest degree of transparency, any contracting authority has the obligation to publish in the Electronic System a participation announcement in all the cases where it applies the procedure of electronic bid, in the conditions specified in this ordinance.

Art. 17. The contracting authority has the obligation to include in the participation announcement that has to be published in the Electronic System all the information specified by the Government Emergency Ordinance no. 60/ 2001 concerning public acquisitions and to apply as appropriate its provisions referring to communication in case the announcement is modified.

Art. 18. (1) The participation announcement has to contain at least the following information, in the form established by the Electronic System operator: 
1. Elements of identification of the contracting authority
2. a) Procedure applied for each stage of the awarding of the contract. 
b) Type of the contract for which offers are requested.
3. a) Place of delivery of the products / location of the work / location where the services are supplied. 
b) Nature and quantity of the products that shall be purchased (CPSA code) / nature and execution requirements, general characteristics of the work / category of the services that shall be purchased and their description (CPSA code). 
c) Indications regarding the possibilities of the bidders to submit an offer for a part or for the entire quantity of requested products / works / services. 
4. Deadline for the delivery of the products / deadline of the execution of the work / duration or deadline of supplying the services. 
5. a) Modality of obtaining a copy of the documentation for the elaboration and submission of the offer.
b) Cost and the payment conditions for obtaining this copy (should this be the case).
c) Deadline for the request of the clarifications.
6. a) Deadline for the submission of the offers.
b) Modality of submission of the offers.
c) Language or languages in which the offers have to be drafted.
7. Date, hour and place of opening of the offers.
8. Participation bonds that are requested. 
9. Main modalities of financing and payment and / or the references to the provisions that regulate these issues. 
10. Legal form of the legalisation of the association of the group of bidders who were awarded the supply contract (should this be the case).
11. Information regarding the eligibility conditions, as well as the minimum conditions regarding the technical and the financial – economic capacity of the bidder. 
12. Period for which the bidder has to maintain the validity of his offer.
13. Criterion that shall be used for the awarding of the contract. 
14. Interdiction to submit alternative offers (should this be the case).
15. Other information (granting of the internal preference, etc.).
16. Date of the publication in the Electronic System and the number of the announcement of intent or the specification that such an announcement does not exist. 

Section 3: Registration of Bidders 

Art. 19. (1) Any supplier, executor, or deliverer who wishes to participate to the electronic bid procedure for the awarding of a certain public acquisition contract has to be registered in accordance with the procedure specified by the Electronic System operator. 

(2) In the moment of the registration, each candidate shall receive the detailed description of the communication procedure and of the procedure of electronic generation of the documents that shall be used during the electronic bid, the observance of these procedures being mandatory. 

Section 4: Pre-selection of Candidates

Art. 20. (1) The contracting authority has the right to organise the pre-selection of the candidates who expressed their intention of participating to the electronic bid procedure. 

(2) The criteria on grounds of which the pre-selection shall take place have to be published in the participation announcement and have to be in keeping with the principles of objectivity, proportionality and non-discrimination. 

(3) Depending upon the nature of the public acquisition contract, the contracting authority may establish as a condition for pre-selection the compliance with certain minimum conditions referring to the technical capacity and to the financial – economic situation of the solicitants. 

Art. 21. (1) In the case where a pre-selection is applied for awarding a public acquisition contract, the contracting authority has to establish and to include in the participation announcement the deadline until when the qualification documents may be submitted. 

(2) The deadline established by the contracting authority cannot be sooner than 30 days from the date of the publication of the participation announcement in the Electronic System.

(3) The contracting authority has the right to accelerate the application of the procedure, that is, to reduce the number of days specified in paragraph (2), but the term must be of at least 10 days, and only in the situation where, due to emergency reasons, the observance of the number of days specified in the respective paragraph would harm the contracting authority. In this case the contracting authority has the obligation to include in the participation announcement the reasons of the accelerated application of the procedure. 

Art. 22. (1) The candidates are entitled to request clarifications regarding the pre-selection procedure and the qualification documents until at most 6 days before the deadline for submitting the qualification documents.

(2) The contracting authority has the obligation of placing at the disposal of all candidates, by publication in the Electronic System, the answer to the requested clarifications within at least 4 days before the deadline for submitting the qualification documents. 

Art. 23. (1) The pre-selection of the candidates has to be performed every time this is possible from the technical point of view, by the utilisation of an automatic procedure for verifying whether or not the criteria are met, in the conditions specified by the Electronic System operator, on grounds of the specifications of the contracting authority. 

(2) In the case where the pre-selection cannot be performed by means of an automatic procedure, the evaluation committee of the contracting authority is obliged to transmit the result of the pre-selection within at most 24 hours from reaching a decision, in keeping with the procedure established by the Electronic System operator. 

Art. 24. The result of the pre-selection, together with the corresponding motivation, shall be placed at the disposal of all candidates, by means of the Electronic System. 

Section 5: Communication of the Documentation for the Elaboration and Submission of the Offer

Art. 25. (1) The documentation for the elaboration and submission of the offer has to contain the criterion upon which the public acquisition contract is awarded and, should this be the case, the detailed manner of calculation to be applied for establishing the score. 

(2) In the case where the evaluation is performed on the criterion of the most advantageous offer from the technical – economic point of view, the contracting authority has the obligation to establish a manner of calculation allowing the utilisation of an automatic procedure for selecting the winning offer, each time this is possible from the technical point of view. 

Art. 26. (1) The participation bond is constituted by the bidder in order to protect the contracting authority against the risk of a possible inadequate conduct of the bidder during the entire period until the conclusion of the public acquisition contract. 

(2) The documentation for the elaboration and submission of the offer has to contain the amount of the participation bond and its period of validity. 

(3) The amount of the participation bond is established as a fixed sum, which shall vary as a rule between 1% and 2% from the estimated value of the public acquisition contract, and which shall be no smaller than 0,5% or higher than 2,5% from this value. 

(4) The period of validity of the participation bond shall be at least equal with the period of validity of the offer. 

Art. 27. (1) The contracting body is entitled to transfer the participation bond in its own budget, the bidder losing the respective sum in any of the following situations: 
a) He withdraws the offer during the validity term;
b) His offer is selected as a winner and he fails to constitute the performance bond within the period of validity of the offer; 
c) His offer is selected as winner and he refuses to conclude the public acquisition contract within the validity term of the offers. 

Art. 28. (1) The performance bond is constituted by the contracting party in order to assure the contracting authority that it shall execute the contract from both the quantitative and qualitative points of view and within the due term. 

(2) The contracting authority has the obligation to establish in the documentation for the elaboration and submission of the offer the amount of the performance bond, which shall range between 5% and 10% from the value of the contract. 

Art. 29. (1) The deadline established for the submission of the offers must not be shorter than 45 days from the date when the documentation for the elaboration and submission of the offer is published in the Electronic System.

(2) By way of exception from the provisions of paragraph (1), in the case where the contracting authority has published in that year an announcement of intent regarding the public acquisition contract that is to be awarded, it has the right to reduce the period established for the submission of the offers, period which must not be smaller than 26 days from the date when the documentation for the elaboration and submission of the offer is published in the Electronic System.

(3) The provision of paragraph (2) is applicable only in the case where the announcement of intent was transmitted by the contracting authority to be published with at least 52 days before the date of the transmission for publication of the participation announcement.

(4) In the case where, due to emergency reasons, the observance of the number of days specified in paragraph (1) would harm the contracting authority, the latter is entitled to accelerate the application of the electronic bid procedure by reducing the number of days, but not for less than 10 days. 

Art. 30. In the case where the object of the public acquisition contract includes the supply of goods, the price offer submitted by each supplier has to contain the cost of the transportation of the products to the delivery place indicated by the contracting authority in the participation announcement. 

Art. 31. The receipt of the requests for obtaining the documentation regarding the elaboration and submission of the offer and the remittance of the respective documentation are to be performed by using the communication procedure established by the Electronic System operator. 

Art. 32. (1) The bidders have the right to request clarifications regarding the documentation for the elaboration and submission of the offer with at least 8 days before the deadline for the receipt of the offers. 

(2) The contracting authority has the obligation to place at the disposal of all bidders, by publication in the Electronic System, the answers to the clarifications with at least 6 days before the deadline for the receipt of the offers. 

Art. 33. (1) The offers and the documents that accompany them must be in an electronic form, if necessary by using the electronic signatures or cryptography, in keeping with the procedure established by the System operator. 

(2) The offer has a binding and mandatory character, from the point of view of the content, during the entire period of validity established by the contracting authority, has to be signed electronically by the bidder, and has to be transmitted until the deadline for the receipt of the offers. 

(3) The person who supplies, executes, or provides is obliged to transmit the offer in accordance with the procedure established by the System operator and undertakes the risks of the transmission of the offer, including any force majeure event. 

Section 6: Evaluation of Offers 

Art. 34. The opening of the offers in electronic form shall take place in keeping with the procedure established by the Electronic System operator. 

Art. 35. (1) The evaluation of the offers has to take place, every time this is possible from the technical point of view, by using an automatic procedure for applying the manner of calculation specified in the documentation for the submission and elaboration of the offer, in the conditions specified by the Electronic System operator, based on the specifications of the contracting authority.

(2) The examination of the offers, their evaluation and the selection of the most advantageous offer are to be performed, as appropriate, by means of the facilities offered by the electronic systems of classification of offers, in accordance with the procedure established by the System operator. 

(3) In the case where the evaluation cannot be performed, in whole or in part, by using an automatic procedure, the evaluation committee of the contracting authority is obliged to transmit the result of the evaluation within 24 hours from reaching a decision, in keeping with the procedure established by the Electronic System operator. 

Art. 36. (1) In order to determine the winning offer, the contracting authority is entitled to resort to an open bid procedure. Thus, for one of the criteria for evaluation quantifiable electronically, each bidder has the possibility to present, within a clearly specified time period, several consecutive offers the value of which is accessible by the other bidders, while the identity of the author of each offer may not be known by the other bidders.

(2) The standard rules for the application of the procedure specified in paragraph (1) are established by the System operator, so that during the entire procedure the confidentiality regarding the identity of each bidder, including in its relation with the contracting authority, may be ensured. 

(3) The detailed description of the procedure has to be specified in the documentation for the elaboration and submission of the offer. 

(4) For each bidder the issuance of a new offer means the cancellation of the previous offer. 

(5) At the end of the time period specified in paragraph (1) the winning offer is the one which is the most advantageous from the existing ones, the identity of the author of the winning offer becoming accessible to the other bidders and to the contracting authority. 

Art. 37. (1) The transmission of the communication regarding the result of the selection of the winning offer is performed with a term of 5 days by means of the communication procedure established by the Electronic System operator. 

(2) In the case of the accelerated application of the electronic bid procedure, the term specified in paragraph (1) is of 24 hours. 

Section 7: Conclusion of the Contract

Art. 38. (1) The contracting authority has the obligation to conclude the contract with the bidder whose offer was selected as winner in keeping with the conditions set forth in this chapter. 

(2) In the case where the contracting authority cannot conclude the contract with the bidder whose offer was selected as winner, it is entitled to:
a) Invite the bidders in the decreasing order of the classification to conclude the contract; or
b) To cancel the application of the procedure for awarding the public acquisition contract.

(3) The contracting authority has the obligation to conclude the public acquisition contract in the period of validity of the offers. 

(4) Without breaching the provisions of paragraph (3), the contracting authority has the obligation of concluding the public acquisition contract only after 15 days from the date when the communication regarding the selection of the winning offer is transmitted. 

Art. 39. (1) The bidder invited by the contracting authority to conclude the public acquisition contract is obliged to constitute the performance bond in accordance with the provisions of the documentation for the elaboration and submission of the offer. 

(2) If the performance bond was constituted under the form of a letter of bank guarantee, this shall become an appendix to the contract. 

(3) The contracting authority is entitled to have claims regarding the performance bond, within the limits of the damage caused, if the contracting party does not fulfil the obligations undertaken by contract. Before expressing a claim upon the performance bond, the contracting authority is obliged to notify the claim to the contracting party, specifying the obligations that have not been observed. 

Art. 40. (1) The conclusion of the contract in electronic form is performed in accordance with the procedure established by the Electronic System operator. 

(2) The contract is signed electronically by the parties and a copy is stored by the operator in order to constitute adequate evidence. 

(3) In the case where the contracting authority establishes in the documentation for the elaboration and submission of the offer the mandatory conclusion of the contract by other means but on-line, the contract signed electronically by the parties has the nature of a pre-agreement.

Art. 41. (1) The contracting authority has the obligation to denounce unilaterally the public acquisition contract, within at most 30 days from the occurrence of circumstances which could not be foreseen at the date of the conclusion of the public acquisition contract and which lead to the modification of the contractual clauses in such a way that the execution of the contract would be contrary to the public interest. 

(2) In this case the contracting party is entitled to claim the payment for the part of the public acquisition contract which has been executed up to the rescission, as well as the recovery of other costs related to its execution incurred until the date of the unilateral denunciation of the contract. 

Art. 42. In the case either party to the public acquisition contract fails to observe its contractual obligations, the other party is entitled to request the rescission of the public acquisition contract and to claim damages. 

Section 8: Publication of the Awarding Announcement 

Art. 43. The contracting authority has to transmit for publication in the Electronic System an announcement of awarding of the public acquisition contract within 30 days from the date of its conclusion in the conditions, in the form and in accordance with the procedure established by the Electronic System operator. 

Section 9: Procedural Provisions 

Art. 44. The Electronic System operator has to establish those procedures and security norms that ensure the necessary degree of confidentiality and safety for utilisation in the purpose of the well conduct of the electronic bid procedures. 

Art. 45. (1) All communications performed during the electronic bid procedure have to be made on-line, in accordance with the rules established by the Electronic System operator, under the sanction of not taking them into consideration. 

(2) Any communication, solicitation, information and other such specified by the law have to be transmitted in electronic form, in accordance with the procedure established by the Electronic System operator. 

Art. 46. (1) All the documents transmitted during the electronic bid procedure have to be submitted in electronic form and have to be signed electronically, if necessary by using a cryptography method, in the conditions established by the Electronic System operator, under the sanction of not taking them into consideration. 

(2) All documents in electronic form that contain expressions of the will of the person who signed them electronically, in keeping with the procedures established by the Electronic System operator, are presumed to belong to the author of the respective signature. 

(3) Any document in electronic form has to be registered at the moment of the transmission and of the receipt, in accordance with the procedure specified by the Electronic System operator. 

(4) Any receipt of a document in electronic form has to be confirmed, except for the documents confirming the receipt. 

(5) The form of the electronic documents, as well as the conditions of its generation, transmission and storage are established by the Electronic System operator. 

Art. 47. (1) If the specifications of the contracting authority require the obligation to submit certain documents in original or in legalised copy, this obligation shall be deemed to be met by the submission of an electronic copy of the documents in question, copy which is to be electronically signed by a public notary registered in the Electronic System, in accordance with the procedure and conditions established by the System operator. 

(2) The issuance of an electronic copy of a document is a notary act and is equalled from the point of the applicable legal regime, including in what concerns the minimum fees, to the legalisation of copies of documents specified in article 93 of the Law no. 36/1995 regarding public notaries and notary’s activity, with the further modifications. 

(3) The issuance of an electronic copy of a document specified in paragraph (1) is governed by the provisions of the Law no. 36/1995 regarding public notaries and notary’s activities, with the further modifications. 

(4) The conditions and the procedure for the registration of the notaries in the Electronic System, as well as the due registration fee are established by the System operator. 

Art. 48. (1) The obligation of submitting a participation bond or a performance bond is considered fulfilled by the submission of an electronic copy of a letter of bank guarantee in favour of the contracting authority, copy signed electronically by the issuing bank, provided that this bank be registered with the Electronic System, and in accordance with the procedure and conditions established by the System operator. 

(2) The conditions and procedure of the registration of banks with the Electronic System, as well as the due registration fee are established by the Electronic System operator. 

Art. 49. (1) The operator of the Electronic System has the obligation to publish the announcements specified in the articles 15, 16, and 43, within at most 24 hours from the date of their on-line registration.

(2) The procedure of on-line registration of the announcements specified in articles 15, 16, and 43, their structure as well as the structure of the invitation of participation are established by the Electronic System operator.

(3) The publication of the announcements specified in articles 15, 16, and 43 in the Electronic System is free of charge.

Art. 50. (1) In order to cover the costs of operation and utilisation of the Electronic System, each person who supplies, executes or delivers a good, service or work who concluded a public acquisition contract following application of an electronic bid procedure has to pay the Electronic System operator a utilisation fee, established as a percentage of the value of the contract. 

(2) The amount of the utilisation fee is established by the Electronic System operator and cannot exceed 0,5 % of the value of the contract. 

(3) The obligation to pay the utilisation fee specified in paragraph (1) is undertaken by the person who supplies, executes or delivers a good, service or work at the moment of the conclusion of the public acquisition contract. 

(4) The contracting authority does not owe utilisation fees. 

(5) In the case where a person who supplies, executes or delivers a good, service or work does not pay within a term of 30 days from the date of the conclusion of a public acquisition contract the fee specified in paragraph (1), it is lawfully suspended from the Electronic System until the date of submitting the evidence of payment of the fee. 

(6) The fee specified in paragraph (1) constitutes revenue for the System operator’s budget. 

Art. 51. (1) The Electronic System operator is obliged to implement a system of evaluation of the performance of the suppliers, deliverers, and executors registered in the Electronic System in order to impose the observance by each of them of the mandatory procedures and rules of using the Electronic System and the avoidance and prevention of frauds, in keeping with the principles of transparency, proportionality, non-discrimination and equity. 

(2) Any contracting authority may establish as a pre-selection criterion in an electronic bid procedure a minimum value of the performance index established in accordance with paragraph (1), in keeping with the principles of transparency, proportionality, non-discrimination and equity. 

Art. 52. For the purpose of application of the provisions of the present chapter, date means the day, the month, the year, as well as the hour and the minute. 

Section 10: File of the Electronic Bid Procedure

Art. 53. (1) In order to ensure the adequate means of evidence, the Electronic System operator has the obligation to draft in an electronic version the file of the electronic bid procedure. 

(2) The information and documents in electronic version that have to be included in the public acquisition file are established by the Electronic System operator and have to allow the storage in security conditions of the necessary records for each on-line stage of the electronic bid procedure. 

Art. 54. The file of the electronic bid procedure is stored by the Electronic System operator as long as the public acquisition contract produces effects, but not for less than 5 years from the date of the finalisation of the respective contract. 

Art. 55. Upon request, the file of the electronic bid procedure is placed at the disposal of any interested public body to be consulted, provided that no information be disclosed if its disclosure is contrary to the law, impedes the application of the law, harms the public interest, affects the legitimate commercial interest of the parties, or affects free competition, but without limiting the rights deriving according to the law for the empowered bodies, to take possession of documents which may serve for proving frauds, misdemeanours, or crimes.



CHAPTER IV: CANCELLATION OF THE APPLICATION OF THE ELECTRONIC BID PROCEDURE

Art. 56. The contracting authority is entitled to cancel the application of the procedure for the public acquisition contract only if this decision is made before the date of transmitting the awarding announcement and only in the following circumstances: 
a) A satisfactory level of competition was not ensured; 
b) None of the candidates / bidders fulfilled the qualification conditions specified in the documentation for the elaboration and submission of the offer; 
c) Only inadequate offers were submitted, that is, offers which: 
- are submitted after the deadline for the submission of the offers; 
- were not elaborated and submitted in accordance with the requirements set forth in the documentation for the elaboration and submission of the offer;
- contain in the financial proposal prices which may not be the result of free competition and which cannot be rigorously justified; 
- contain proposals regarding the contractual clauses which are obviously contrary to the interest of the contracting authority; 
- by the value included in the financial proposal, each of them has exceeded the value of the funds allotted for the execution of the respective public acquisition contract. 
d) Exceptional circumstances affect the procedure for awarding the public acquisition contract or the conclusion of the contract is not possible. 

Art. 57. The cancellation decision does not create any obligation of the contracting authority towards the participants to the public acquisition procedure, except for the reimbursement of the participation bond. 

Art. 58. The contracting authority has the obligation to communicate to all participants to the public acquisition procedure both the end of the obligations undertaken by submitting offers and the reason of the cancellation. 

CHAPTER V: MEANS OF APPEAL

Art. 59. Any natural or legal person that has a legitimate interest related to a certain public acquisition contract, and that suffers, may suffer, or has suffered damages as a direct consequence of the violation of the provisions of this ordinance, is entitled to appeal against the illegal act or decision, under the conditions established in articles 80 – 97 of the Emergency Ordinance of the Government no. 60/ 2001 on public acquisitions. 

Art. 60. The decisions of the contracting authority concerning the selection of the electronic biding procedure for the purpose of awarding a public acquisition contract.

Art. 61. The notification and the communication mentioned in article 86 of Ordinance no. 60/ 2001 on public acquisitions may be also performed by electronic means if the participants to whom it is addressed have previously consented to the means.

Art. 62. (1) As soon as a contestation or a notification concerning the initiation of legal action, for the purpose of optimising the process of monitoring of the public acquisitions system, shall be received by the contracting authority, this authority has the obligation of informing the operator of the Electronic System of the action by enclosing an electronic copy of the contestation/notification received.

(2) The contracting authority has the obligation of communicating all the documents and decisions concerning the contestation/legal action to the operator of the Electronic System by electronic means, within two working days from their issuance/receipt.

Art. 63. The irrevocable court orders issued in relation to the litigation whose source is Ordinance no. 60/2000 on public acquisitions shall be published in the Electronic System, while the payment of the transmission as well as of the publishing fees shall be undertaken by the party who has lost the lawsuit; for this purpose, the court shall establish the payment of these fees by means of the same order.

CHAPTER VI: SANCTIONS

Art. 64. In the case where a person that supplies, executes, or provides goods, services or works violates the rules and procedures established by the operator of the Electronic System, the latter may decide, as the gravity of the violation may be, the suspension of the right of the person who supplies, executes, or provides of using the Electronic System, his exclusion of the System, as well as the ban to register with the Electronic System for maximum 5 years.

Art. 65. (1) The following deeds shall be considered and sanctioned as misdemeanours, if they are not committed under such conditions as the criminal law may consider them crimes:
a) The performance of a public acquisition by eluding or violating the provisions of the present Ordinance or of the norms issued for its application;
b) The application of the procedure of awarding by electronic bid of a public acquisition contract without the legal authorisations, notes, references, and approvals;
c) The providing of information to one or several persons who supply, execute, or provide that favours them within the procedure of awarding a public acquisition contract;
d) The holding of information concerning the content of the other participants’ offers to the procedure, as well as his agreement with other participants or with the contracting authority for the purpose of corrupting the result of the procedure.

Art. 66. (1) The misdemeanours mentioned in article 65 shall be sanctioned with fine from 20,000,000 ROL to 250,000,000 ROL. 

(2) The amount of the fines mentioned in paragraph (1) shall be brought up to date by means of Government Ordinance, in relation to the inflation rate.

(3) The ascertaining of the misdemeanours and the application of the sanctions shall be ruled by empowered representatives of the Ministry of Public Finance.

(4) The provisions of Government Ordinance no. 2/2001 on the legal regime of misdemeanours shall be also applied to the misdemeanours mentioned in paragraph (1).

CHAPTER VII: FINAL AND TRANSITORY PROVISIONS

Art. 67. The public acquisition procedures used at the time of the entry into force of the Government decision adopted in the conditions set forth by art. 5 shall be finalised on grounds of the legal provisions into force at the date of the initiation of the respective procedures.

Art. 68. (1) At the time of the entry into force of the present ordinance, the Electronic System shall be founded.

(2) The operator of the Electronic System, in collaboration with the duly empowered public institutions, shall use those security standards and procedures that shall ensure a high degree of reliability and safety of the operations deployed within the System, in accordance with the international practice in the field.

(4) The operator of the Electronic System has the obligation of developing an electronic system of classification of the products, works, and services whose acquisition constitute the object of the public acquisition contract, compatible with the grouping and codification system mentioned in the official statistic classifications, in the purpose of transparency, promotion of the competition, and facilitation of market studies. 

Art. 69. (1) The operator of the Electronic System is the General Inspectorate for Communications and Information Technology, public institution with legal personality in the subordination of the Ministry of Communications and Information Technology, integrally financed through extra-budgetary revenues.

(2) The General Inspectorate for Communications and Information Technology is founded by Government decision, by means of re-organising the Autonomous Regie “General Inspectorate of Communications”, that ceases to exist.

(3) The extra-budgetary revenues of the General Inspectorate for Communications and Information Technology shall come in principal from the following sources:
a) The radio spectrum usage fees;
b) The supervision and control fees in the field of communications and information technology, provided by the normative acts in force;
c) The fee for the utilisation of the Electronic System and the registration fee;
d) Other revenues that may be realised under the provisions of the normative acts in force.

Art. 70. (1) The Ministry of Communications and Information Technology may adopt, wherever necessary, mandatory norms for the use of the Electronic System, as the degree of technology development and adequate security requirements may be. 

(2) The Ministry of Communications and Information Technology, the Ministry of Public Finance, as well as the National Bank of Romania shall draft and adopt, within 1 year from the date of the entry into force of the present ordinance, the norms necessary for the use of electronic payment means within the Electronic System.

Art. 71. This ordinance shall enter into force within 30 days from its publication in the Romanian Official Gazette, Part I.

Published in the Official Journal of Romania, no. 86 of February 1, 2002.

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