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The beginning of the year has been marked by substantive legal changes in Romania – notably on fiscal regulation, but also in other key areas, such as investments. A significant chapter is represented by investments with European funding, where recent regulations raises questions to foreign investors and not only.
Thus, in January, Law no. 11/2018 for the approval of Government Ordinance no. 27/2017 regarding the financial management of European funds for the 2014-2020 period entered into force. This piece of legislation enacts the possibility of the managing authorities to conclude financing agreements with a resolutory clause, the fulfillment of which will depend on the financing of the projects concerned.
Correspondingly, the possibility for authorities to launch public procurement proceedings with a suspensive clause is regulated. Contracts under a suspensive clause proceeding will be signed only after the resolutory clause, provided in the financing agreement concluded with the managing authority, has been fulfilled.
It is worth mentioning that if the resolutory clause is not fulfilled, the contracting authority may sign the agreement related to the public procurement proceedings launched with a suspensive clause only if another source of financing is identified.
It is to be noted that the examined law complements an already existing practice at the level of public authorities.
In a considerable number of ongoing tenders analyzed in our practice, the data sheet (and sometimes in a complete manner, the contractual agreement) has included mentions that the awarding procedure is initiated under the incidence of a suspensive clause. Therefore, the conclusion of the public procurement contract is conditioned by the conclusion of the financing contract with the managing authority.
It was provided that if, for any reason, the financing contract with the managing authority was not signed, the contracting authority reserved the right to apply the provisions of art. 212 paragraph (1) point c) of Law no. 98/2016 on public procurement/ art. 225 paragraph (1) point c) of Law no. 99/2016 on sectorial procurements. These clauses establish the obligation of the contracting authority to cancel the award proceeding if it is impossible to conclude the public procurement agreement.
Surely, in the same tenders, additional indications are included according to which tenderers in the procedure accept the use of the special conditions / the suspensive clause, assuming full responsibility for any possible incurred damages.
Therefore, the more so under the provisions of Law no. 11/2018, it is recommend to pay an increased attention to the awarding documentation, as well as to have an informed risk analysis based on current regulations under Romanian law.
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Alexandra is an alumna of the University of Bucharest, Faculty of Law, and currently contributes her expertise to the dispute resolution and arbitration department at Sirbu & Vornicu Law. Her primary specializations encompass public procurement, construction law, and administrative law.