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Articles
LEGAL METAMORPHOSES OF PUBLIC PROCUREMENTS FRAMEWORK
The tuning treatments applied periodically to the legislation in force has not ignored the Emergency Government Ordinance no. 60/2001 on public procurements, as subsequently amended. Thus, three successive revisions aimed at notching up the correction of art. 41 regarding the price denomination under public procurement tenders.
In concrete terms, referring only to the result reached to date, we observe that according to art. 41 par. 2 prices under the public procurement tenders must be denominated exclusively in ROL (the EURO denomination being excluded). Moreover, in case of agreements entailing a performance term of 12 months or under, the price must remain firm (i.e. unmodified).
Pursuant to art. 41 par. 3, in case of contracts concluded for terms exceeding 12 months, the amendment of the price is circumscribed by specific cumulative conditions. The amendment may be effected only: (i) for the rest of the contract to be further performed, (ii) in case of damaging of the legitimate commercial interest of the parties and (iii) if such causes could not have been anticipated before the contract conclusion.
However, it should be also noted that par. 5 and 6 of art. 41 have set out several important exceptions which, in fact, restrain significantly the application of the above-mentioned rules.
First, the rules provided by par. 2 shall not apply to the contracts involving financing provided under EU programs and by other international organizations.
Second, are exempted the acquisitions of interchangeable merchandises if the price is determined by listing on domestic or international commodity exchange institutions.
Third, there are exempted also the acquisitions of equipments, machineries and services. In such cases, the price update is permitted with the observance of criteria set by the said par. 3.
In consideration of the above-mentioned, the specific regulation of the price-update clauses under the public procurement procedures should be performed on a case-by-case basis, by the thorough interpretation and application of the new legal principles.
