ROMANIAN REMEDIES SYSTEM
SEMINAR – 11 DECEMBER 2008
Şerban Filipon
University of Nottingham – The Public Procurement Research
Group – PhD Student
WYG International Limited – Legal & Procurement Adviser
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.
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
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
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
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
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
ROMANIAN REMEDIES SYSTEM
The Administrative-Jurisdictional Course of
Action - outline
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Legal Standing
Competence
Procedure
Time-Limits
Suspension
Solutions
Appeals
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
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)
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
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
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)
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
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 timelimit for contracting
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)
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
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
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
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
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
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)
ROMANIAN REMEDIES SYSTEM
Other measures
• Ex-ante controls – Ministry of Finance
• Application of fines by the Procurement Authority
ROMANIAN REMEDIES SYSTEM
Thank you!
Questions?