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WG Independence-Efficiency > Meetings > Bucharest 2011 > Romanian case example 5

Romanian case example 5

1. In this case, one of the participants to the public procurement procedure has filed a claim against the decision taken by the National Council for Claim Solving (CNSC).
The file was recorded as it were within the records of the Court of Appeal.
During the first hearing, the Contracting Authority filed a motion to intervene for the winner of the tendering procedure, as party defendant within the case brought to the court.
Thus, they ended in the situation of a double standing to bring proceedings where one of the parties justifies its interest both from behalf of the Contracting Authority as well as from tenderer within the public procurement.
Such a situation may bring forth doubts over the fairness and objectivity applied by the Contracting Authority during the public procurement procedure.

2. Some of the works which make up the subject of contract awarding may have a season-based, yearly or periodic character.
The procurement procedure in itself, but especially the related methods of appeal may exceed in time the deadline for execution of those works.
Practically one can end up in the situation where the person who is to supposed to deliver an investment work useless to be undertaken anymore is questioned, as long as the season/period/year that it was contracted for have been exceeded by far, therefore the interest or the usefulness of the procurement disappears. For example, applying herbicides to a crop one year after harvesting !
The deadlines and succession of procedures may generate such situations where the judge has to issue a decision over a juridical situation which has become obsolete, anyway.

3. Some private-owned companies use the procurement procedure for works or services, as stipulated by Government Emergency Ordinance (GEO) no. 34/2006. Such a company that tendered within such a procedure filed a claim to CNSC, which solved this claim by rejecting it as unacceptable.
The question asked is, if following such a procedure, the tenderer has the right to use the methods of appeal stipulated by GEO no. 34/2006, which exclusively regulates the awarding procedures for public procurement contracts.