Public Procurement and Constructions

Since the adoption of GEO no. 34/2006, the first act that aimed to align the national legislation regarding public procurement with the European norms, NDI Lawyers have been constantly involved in the award procedures and in the implementation of some of the most important public procurement contracts assigned at national level,

especially in the fields of constructions, energy infrastructure and equipment and IT services.
In more than 13 years of activity in the field of public procurement, NDI Lawyers have proposed and obtained innovative solutions in front of national courts who have stated:

  • That the cancellation of the procedure report does not automatically lead to the cancellation of the public procurement contract (in case it was already signed);
  • The non-existence of the contracting authority’s right to cancel the tender procedure within the time period between the date of announcing the successful tender and the date of signing the contract (the cancellation of the procedure at this time would be similar to the cancellation of the contract itself, a measure that is only available to the court for grounds other than those which allow the annulment of the procedure based on the right of the authorities to revoke their unilateral documents issued within the procedure);
  • That the amendment of a public procurement contract made under contractual provisions of adjustment stipulated in the awarding documentation (see GCs under FIDIC) does not require a new awarding procedure. Two years after the NDI Lawyers proposed this solution to the national courts, the CJEU confirmed it, classifying these amendments as mechanical and therefore not requiring a new procedure;
  • The interest of a definitively rejected tenderer to obtain the cancellation of an ongoing procedure by virtue of the chance to win the same contract in the case of a new award procedure.

NDI assists and represents clients throughout the entire procedure for awarding and implementing procurement contracts (especially construction and IT), in activities such as:

  • legal assistance in preparing the tenders, completing the European Single Procurement Document, requests for clarification, answers to requests for clarification;
  • assistance and representation before the CNSC (the Romanian body responsible for review procedures) and before courts in claims made during the award procedure;
  • legal management in the implementation of procurement projects, representation in disputes and arbitrations regarding the implementation, amendment and taking over of the works or termination/ resolution of public procurement contracts;
  • representation before the courts in order to cancel and suspend the negative finding documents;
  • drawing up compliance and rehabilitation programs in case of falling under the legal cases of exclusion from award procedures.

In the field of constructions, regardless of whether there are private contracts or contracts awarded in the framework of public procurement procedures, the NDI Lawyers have constantly assisted and represented some of the biggest constructors in solving problems concerning:

  • Amendment of contracts, additional costs and price adjustment;
  • Recovering the costs generated by the suspension or delay of the works and the coverage of other types of damages (including the loss of the non-reimbursable funds) caused by the improper execution of contractual obligations;
  • The taking over of the works or termination of the contracts, the refund of the guarantees and the obligations that survive the termination;
  • The negative effects of opening the insolvency procedure against the leader of an association part of the public procurement contract.

As members of the working groups of an employers’ association in the construction field, NDI Lawyers have been actively involved in the process of improving the legal framework through proposals and consultations on draft legislation, while also being authors of some specialist articles.