“Friendship Law” in the public procurement “industry”

by Oana Strătulă  (Partner)

Many times, ever since the reading of the tender documentation, it can be loomed the preference of the contracting authority for certain potential bidders, that usually results from the established conditions regarding the professional capacity which the participants must have. This is particularly evident in areas where the number of specialists is not very high and they know each other, including in terms of team members, the studies that they have followed, the projects they were involved and their value1.

Of course, a restrictive tender documentation may be subject to appeal before the National Council for Solving Complaints (CNSC), but such an approach requires, on the one hand, a certain level of knowledge of the public procurement legislation which will allow the identification of the restrictive criteria and, on the other hand, the involvement of financial and human resources and also time.

From this perspective, the initiative of the National Authority for Regulating and Monitoring Public Procurement (ANRMAP) of intervening by editing instructions on how contracting authorities must make the qualification requirements aimed at professional capacity, is welcome.

When can requirements regarding the studies be imposed and what they might consist of

The contracting authority may request information regarding the studies only to the extent that is necessary to justify why graduation in a particular area, repectively why only a person who has graduated the required studies, may perform the activities from contract to be awarded and why people who have other studies than those requested cannot do these activities. Also, the contracting authority has the obligation to accurately identify the field of the required studies, not being enough, for example, to state in the tender documentation the condition of studies in the technical field, but the very type of studies which are required, respectively the specialization in civil constructions, industrial and agriculture, etc.

The reference to the duration of the studies can be done by requiring higher education or by requiring medium education, but without being able to impose long-term higher education. In regards to the postgraduate studies, the contracting authority may not require that an expert should have both graduate and postgraduate studies, Master’s Degree or PhD and also it may not impose the graduation of exclusively postgraduate / master / doctorate degree.

To the extent that graduation with a diploma is not necessary for undergraduate studies in a particular area, the contracting authority may allow the proof of the specialization either through studies attested by a undergraduate diploma or postgraduate studies, either through courses that have been completed with nationally or internationally certifications recognized in a specific area.

The overall experience requested by the contracting authority in the field of education can be of maximum 5 years and only exceptionally can be imposed a longer duration when there are specific regulations in force and / or when the contracting authority duly justifies, in regards to the qualification criteria, the complexity of the activities to be performed under the contract, in terms of the position / duties of the expert in cause.

What conditions of specific experience may be imposed to the tenderer

In accordance with instructions issued by ANRMAP, the contracting authority has the right to require that the experience in the field specific of related activities under the contract to be awarded to be of maximum 3 years.

Bidders have the right to prove their specific experience, quantifiable in years, by attending one or more similar contracts / projects regardless of how much time has passed since their completion. Thus, for example, the contracting authority cannot impose that an expert must have been involved in a similar project undertaken in the last 3 years, as it can not require an expert to have a specific experience achieved in the last 3 years.

ANRMAP relaxed the requirements on professional technical certification or license required

In the case of specialists who need some technical-professional certification or license in order to carry out the activities under the contract, the contracting authority has the obligation to mention, in the data sheet of the acquisition, the express provision of the enactment under which the certification is mandatory and to request only the certificate and / or the permit.

The contracting authority has the right to impose conditions of education, seniority, general and / or specific experience or conditions regarding the involvement  in a similar project or contract when institutions authorized to issue such certificates or permits require the fulfillment of certain conditions of seniority or experience. Thus, for example, the conditions of seniority for the technical responsible with the execution, project supervisors, project inspectors, certified personal AFER / ISCIR / ANRE / Anvar / ANCPI / CECAR / CAFR / MCPN cannot be established.

If bidders present foreign experts that own a certificate / equivalent certificate issued by the competent certification authorities from another state, the contracting authority does not have the right to impose obtaining the certificate recognized by the Romanian authorities at the time of submission of tenders but,  in the principle of mutual recognition, they will accept equivalent certificates.

How can specific experience be proven

In order to prove the specific experience, the contracting authority may ask bidders the CV and supporting documents, such as, where appropriate, recommendations, a copy of the job description, a copy of the employment contract, a copy of the contract of collaboration / service providers , a copy from  Revisal etc.

The contracting authority cannot impose that the supporting documents necessary to demonstrate the required experience to be issued exclusively by the beneficiary of the contract / project in which the expert has been involved, they can also be issued by the provider of those services / works. The instructions issued by ANRMAP are mandatory for the contracting authorities and to the extent that they do not conform to the new rules, tender documentation can be challenged by any person that consideres itself aggrieved in a right or a legitimate interest.


1. This is a translation of the article published on July 3rd , 2013 in Business24.ro. For the Romanian original text, please visit this link http://www.business24.ro/administratie/achizitii-publice/editorial-oana-stratula-avocat-legea-prieteniei-in-industria-achizitiilor-publice-1532460