In Romanian Public Procurement Procedures, there were cases qualified as unlawful practices because in the Award Documentation (abbreviated in the following ‘AD’), the Contracting Authority (abbreviated in the following ‘CA’) used unclear/equivocal award criteria or compliance requirements.

More specifically, there were situations when tenderers were disqualified on grounds of lacking certain authorizations or certifications, although these requirements were not mentioned in the Award Documentation. Contracting Authorities provided a very general legal ground for such harsh decisions, as: ‘Tenderers are bound to comply with all the legislation applicable on Romania and the EU’s territory’.

Despite the high frequency of the Contracting Authorities' practice to insert unclear provisions into the Award Documentation, they remain just general directions, which shall not have a mandatory effect as they fail stating a clear conduct for tenderers, a behaviour to follow up.

Raising such equivocal provisions to the level of compliance requirements would translate into the Authority’s discretionary power/right to artificially import specific requirements regarding contract's performance into tender evaluation conditions. Proceeding like this, would lead to avoiding some of the most important principles in Romanian Public Procurement: predictability and transparency. In order to protect these principles, a Contracting Authority bears the duty to avoid unclear criteria and requirements in the Award Documentation and if for some reason there has been a slip into the AD, than the Contracting Authority must abstain itself from disqualifying tenderers based on unclear requirements and must focus its evaluation only on the specific requirements written in the AD.

Therefore, as a preliminary conclusion, in case the Award Documentation doesn't regulate a certain compliance requirement, assuming a certain conduct for the tenderers, but only a general obligation to comply with the applicable legislation, such provision shall not constitute grounds for disqualification.

According to Article 154 of Law No. 98/2016, Contracting Authorities have to clearly and explicitly present in the Award Documentation the compliance requirements and the means of proof. An equivocal approach will always give rise favouritism and abuse[1].

In this regard, in National Council for the Settlement of Complaints (usually abbreviated as CNSC) stated: ‘If Contracting Authority considers necessary a description/presentation of the way of drawing up the quality plan, in other words if it considers it necessary for the tenderers to describe how they will fulfil this obligation as a Contractor, the Authority had the obligation to explicitly mention this requirement, in order to provide economic operators complete, accurate and precise information on the procurement requirements’[2].

Furthermore, Article 2 of Law No. 98/2016 lays down the principles governing the award of public contracts procedure: non-discrimination, equal treatment, mutual recognition, transparency, proportionality and assuming responsibility as well. These principles have the role to create a healthy competitive environment by launching the award procedure on the market, as a guarantee for all tenderers to enjoy equal opportunities.

Equal treatment and non-discrimination also imply equal opportunities in preparing the necessary documents. To achieve this goal, the award documentation has to be clear, objective and transparent allowing full chances of awarding contracts to the tenderer who has the necessary capacity for performing the future contract.

The European case-law, which is a primary source of law in the Romanian legal system, is also consistent when it comes to CA’s obligation to include in the AD compliance requirements which are precise and non-discretionary. Also, the Authority shall not use as a ground for disqualification of a tenderer the failure to comply with this obligation, according to Nemo auditur propriam turpitudinem allegans principle. In order to illustrate the importance of these requirements, it is essential to remember:

Judgment of the CJEU in case C-42/13 of 6th November 2014, Cartiera dell'Adda, para. 44: the wording of award criteria in a manner that would combine the principle of equal treatment with the obligation to transparency – resulting in clear, precise and unequivocal criteria – gives participants a clear view of the content of the Award Documentation, and also equal opportunities, by diminishing arbitrariness and favouritism in awarding public procurement contracts procedure.

Judgment of the CJEU in case C-27/15 of 2nd June 2016, Pippo Pizzo v CRGT Srl, para. 50-51: explicit award criteria have to be used to the detriment of extensive interpretations, which only leads to inaccurate results. Thus, the CJEU opposes the disqualification of tenderers on the basis of equivocal award criteria.

What to do when Contracting Authorities breach the obligations set out above and use equivocal provisions from the Award Documentation to justify the disqualification of a tenderer?

We recommend gradual remedies, depending on the moment the requirements or criteria affect the tenderers’ possibility to participate in the public procurement procedure on an equal and transparent basis.

Remedy No. 1

If the unclear or equivocal requirements are notified as early as the tender phase, Article 160 para. (1) of Law No. 98/2016 provides as mechanism the request for clarifications, whose purpose is to explain the meaning of the requirements inserted in the Award Documentation:

‘Any interested economic operator has the right to request clarifications or additional information in relation to the Award Documentation, subject to the time-limits set out by the Contracting Authority in the contract notice/simplified notice/competition notice’.

Remedy No. 2

If this approach does not lead the procedure on a lawful path then Romanian Public Procurement Law provides for the possibility to submit a request to the court of law or to CNSC aiming for the annulment of the unclear parts (criteria/requirements) of the AD.

Remedy No. 3

If the Contracting Authority uses equivocal provisions to justify disqualification at the moment of the evaluation of the tenders, the ultima ratio measure is challenging the disqualification decision through the procedures regulated by Law No. 101/2016: (i) before the National Council for the Settlement of Complaints or (ii) before the national courts.

As conclusion, it is important to acknowledge that:

• Contracting Authorities are required to use clear, precise and explicit compliance requirements and award criteria in Public Procurement Procedures.
• The disqualification of some tenderers by reference to general and equivocal provisions of the Award Documentation is sanctioned in the domestic and European case-law.
• Tenderers have to be vigilant and seek clarification of provisions in the Award Documentation in order to understand as early as possible how to approach any unclear and equivocal requirements or criteria. A good understanding will help them also to decide if they are going to challenge a disqualification decision, and also will strengthen the chances for a favourable solution.

Mihai Ionescu-Balea, Senior Associate, Oglinda & Partners

[1] Article 154 of Law No. 98/2016: The Contracting Authority has the obligation to develop the Award Documentation containing all the information necessary to ensure the economic operators complete, correct and accurate information on the procurement requirements, the subject-matter of the contract and the conduct of the award procedure.

[2] National Council for the Settlement of Complaints Decision No. 713/C1/499/2022 of 4th April 2022, available on the platform www.sintact.ro.