1. Pillar 3: Regularity and quality of the public procurement process
Contents
1.
Pillar 3: Regularity and quality of the public procurement process .................................. 1
1.1
State of play ............................................................................................................ 2
1.2
The way forward ...................................................................................................... 6
1.2.1
Streamlining the public procurement process ...................................................... 6
A. Preparatory stages, including needs assessment and feasibility studies .................... 6
B. Development of procurement strategy ....................................................................... 7
C. Estimated value ......................................................................................................... 7
C. Annual Public Procurement Plan................................. Error! Bookmark not defined.
D. Selection of procedure ............................................................................................... 8
E. Drafting tender documentation ................................................................................... 8
F. Defining deadlines for preparation and submission of tenders...................................10
G. Clarifications to tender documents ............................................................................10
H. Tender evaluation process ........................................................................................10
I. Award decisions .........................................................................................................11
J. Notifications / complaints ...........................................................................................11
K. Confirmation document .............................................................................................11
L. Contract implementation ............................................................................................11
M. Final analysis of implemented contracts ...................................................................12
N. Transparency and confidentiality...............................................................................13
O. Horizontal measures .................................................................................................13
1.2.2
Actions to ensure regularity and quality of the process: scope and expected imp
act.......................................................................................................................13
A. Develop internal control ............................................................................................14
B. Streamline ex-ante external control ...........................................................................17
C. Improve and extend systems to prevent conflicts of interests: improper influence .....26
D. Streamline ex-post control ........................................................................................33
1.3
Impact and results indicators ..................................................................................34
1.4
List of Annexes corresponding to Pillar 3................................................................47
Page 1 of 47
Disclaimer: this chapter aims at improving the regularity of the procurement
procedures in Romania, reviewing accordingly the national control system. The
detailed measures are without prejudice to the functions and independence of the
management and control system for EU funds, solely ruled by Regulation 1303/2013
This Pillar contains a main text (Strategy), a table with the specific actions (Action plan) and
annexes. The annexes are complementing documents. They must be read in the light of the
Strategy and Action plan and cannot amend or contradict the actions as set out in the
Strategy and Action plan. Those texts always prevail over the annexes.
State of play
The current pillar of the strategy outlines the measures to be taken aiming at improving the
quality and regularity of the public procurement process. It is structured into two separate
and complementary sections, targeting (i) the streamlining of the public procurement process
on the basis of commonly agreed solutions to practical problems identified during the
discussion in the public procurement working group and (ii) the reshaping the dynamics of
the control procedures in order to bring more efficiency and accountability to the process.
The first section focuses on the measures designed to improve the public procurement
process, responding to the problems generated by the current rules or practice. The
measures will be mainly taken as part of the secondary legislation defining the implementing
rules of the laws transposing the 2014 Public Procurement Directives and/or as part of the
tertiary legislation and guidance to be further elaborated. The problems, solutions and related
instruments are detailed in Annex 1 to the present pillar, integral part of the current
document.
The process of identification of problems and solutions has been facilitated by incorporating
the input obtained during extensive public consultations with relevant organisations such as
the Coalition for the Development of Romania, the Public Policies Institute or representatives
of the professional organisations. Solutions have been identified in light of best practices and
of the orientations provided by the 2014 Directives.
The second section of the present pillar focuses on the methods, institutions and means
required to ensure that the public procurement process is regular and of good quality.
Ensuring the regularity and quality of the public procurement process mainly entails the
adequate functioning of the following:

Efficient internal control systems,

Reliable ex-ante external control,

Adequate prevention of conflicts of interest,

A solid remedy system (dealt with under pillar 2 above),
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
Effective ex-post control.
The efficiency of the current public procurement system is impaired by a series of
deficiencies highlighted in the following paragraphs.
The existing control systems in the public procurement field are fragmented, partly redundant
and focusing almost exclusively on formal aspects pertaining to the regularity of the process,
without assessing objective quality considerations (i.e. it is assessed whether the “letter of
the law” has been observed, instead of focusing on the effective value for money generated
by the procedures, particularly by assessing to what extent effective competition and
transparency have been ensured).
Internal control is weak, mainly as a result of the pressure exerted by highly hierarchical
system which voids of effectiveness the checks and balances formally in place. Control is
usually reduced to the limited role of the preventive financial controllers, rather than defining
a more comprehensive control mechanism. As regards public procurement process, internal
control is ineffective, mostly formal and fragmented, especially at local level. It seems to be
focused exclusively on the legality of the budgetary aspects, without considering any
strategic dimension, such as budgetary allocation, prioritization of projects or elements of the
tender dossier.
As a consequence, considering the weak internal control environment, the Romanian system
is focused on additional compensation levers such as external controls (ex-ante and expost).
Currently, the system relies on two types of ex-ante external controls, namely control of the
tender documentation and control of the tender evaluation.
The following deficiencies have been identified pertaining to the ex-ante control:

General: Ex-ante control on the tender documentation and ex-ante control for tender
evaluation focus on different aspects which are not seen as part of an integrated
approach and which are not sufficiently interlinked.

Related to ex-ante control of the tender documentation:
o
o
o
o
With the current human resources available (on average 28 people), in 2014,
ANRMAP has performed about 47,295 verifications of tender documents
(including returns), in respect of roughly 18,500 individual procedures. This
represents an average of 7 verifications per person and per day.
The control screens only the information included in the Data Sheet – mostly
qualification and award criteria,
The control does not spot discriminatory contractual clauses, nor biased or substandard technical specifications,
Due to the detailed justification required for the use of the most economically
advantageous tender criterion, contracting authorities are discouraged to use it
and prefer to recourse to the lowest price criterion, even when not opportune,
which is perceived to provide more security when subject to subsequent various
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o
o
o
o

controls. This approach might place the CAs in a better position when faced with
external scrutiny, however, it considerably hampers the development of strategic
procurement policies and leads to important efficiency losses in the use of public
funds,
The controls are not providing any incentives to the contracting authorities to
develop their administrative capacities by remedying the issues spotted. Instead,
they instill a defensive attitude of CAs and result in a lack of ownership translated
in highly inefficient procedures, De facto, the rejection rate of tendering notices is
rather stable, confirming the slow progress achieved by contracting authorities in
improving the regularity and quality of their tendering documentation
In case of disagreement between the contracting authority and the control body,
there is no possibility to appeal the decision of the control body,
The timespan period between the first submission by the CAs of the tender notice
to the control body and its actual publication is in many cases extremely long; in
average, documents are rejected more than once,
Despite validation by the ex-ante control, certain aspects might still be contested
and considered irregular at a later stage (ex-post control, audits), obliging
contracting authority supporting the inflicted sanctions / financial corrections.
Related to the ex-ante control of tender evaluation:
o
o
o
o
o
o
With the current human resources available (about 200 persons), UCVAP !!! has
performed about 2,000 verifications of tender evaluations in year 2014, out of a
total of 18,500 procedures being published and about 4,000 negotiations without
publication of tender notice.
The control does not focus on critical stages of the procedures,
Limited technical capacity at control body level,
Observations are not always focusing on the important aspects of the awarding
procedure or on the correctness of the evaluation committees decision on the
rejected / winner bidders,
Observations are not mandatory for the contracting authorities and there is no
mediation mechanism to issue opinions/interpretations acknowledged by the
stakeholders of the system,
Highly important, the control of conflicts of interest covers limited situations when
they might occur and it is limited to EU funds.
As regards the ex-ante control of tender documentation, data from ANRMAP show the
following results:
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Year
Number of
contracting
authorities1
Number of
procedures
controlled
Number of rejections
of tender
documentation
2012
3,899
27,656
31,937
2013
3,069
19,343
28,886
2014
3,221
18,367
26,957
This shows that, in average, a tender documentation is rejected more than once. It also
shows that, although about 15,000 entities are registered in the national public procurement
platform as contracting authorities, a significantly less number of these is actually involved in
procurement above the threshold for direct purchase . It is to be mentioned that the reduction
in the number of contracting authorities and procedures published from 2012 to 2013
corresponds to the increase of the thresholds for direct purchase, effective from the 1 st of
July 2013. This requires targeted measures to increase the transparency of the procedures
below the thresholds of the directives.
As regards the ex-post control, the following deficiencies have been identified:



Several institutions are performing ex-post controls / audits: Court of Accounts, Audit
Authority, ANRMAP, managing Authorities. This results in overlaps between institutions
(unavoidable for institutions involved in EU funds management and control) as well as
differences of interpretations.
Ex-post control might overlap with ex-ante control (i.e. performing a new verification of
the same issues), with different conclusions.
There are significant differences between the national and EU funds in terms of ex-post
control.
In addition, controls only focus on regularity issues, whereas procurement practices which
may impede the intensity of the competition and discourage performant bidders (low quality
of tendering documentation, unreasonable or disproportionate requirements or
responsibilities, insufficient time left for issuing bids), prejudicial for the quality of the project
and the value for money are not addressed through the verification process.
Finally, as pointed out in several other fields of the Romanian administration as well, there is
a generalised perception that irregularities are primarily the responsibility of procurement
officers, who should then be sanctioned as individuals, rather than identifying, penalizing
and then remedying the deficiencies of the system, e.g. by better guidance, improved training
and sounder internal control environment. This perception leads to risk-avoidance
1
Number of contracting authorities publishing tenders in SEAP and whose tender documentation have
been subject to ex-ante control
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behaviours whereby implementing best practices is replaced by a focus on strict compliance
and applying sound judgement by a mechanistic approach. Some of the consequences are
(i) the generalised use of the lowest price criterion, even when significant intellectual services
are required or in case of complex tenders, (ii) the focus on detailed technical specifications
rather than on performance specifications or (iii) focus on the qualification criteria rather than
on the assessment of technical proposals. Ultimately, the consequences are detrimental to
achieving value for money and to the actual use of public procurement in promoting public
policies such as innovation or environmental sustainability.
The revisited approach aims at modifying the initial paradigm, along the following principles:
1.
Enhanced responsibility of contracting authorities, through increase of their capacity
from the set of actions detailed in pillar 4 and more effective internal controls to detect and
prevent deficiencies;
2.
Parallel gradual phasing out of the systemic ex-ante control, towards sample
verifications, with a view to further increasing their accountability. The phasing out pace will
then take into account the evidence enhanced reliability of the contracting authorities.
1.1 The way forward
As described above, the way forward includes two main groups of actions, that are described
in two different sections below:
-
1.1.1
Those aiming at improving the deficiencies in the public procurement process, and
Those aiming at ensuring an adequate level of control on this process.
Streamlining the public procurement process
The main logical and chronological steps of the public procurement process, from initiation to
completion of the contract have been analysed, with a view to identify the current
deficiencies and tailored solutions. These have then been grouped under 14 headings
reflecting the “life-cycle” of the public procurement process, plus 3 horizontal headings. While
details on the deficiencies and solutions are presented in Annex 1 to the present pillar, the
following paragraphs outline the most important aspects.
A. Preparatory stages, including needs assessment and feasibility studies
The definition of needs and prioritisation of investments and purchases require urgent
improvement. A number of measures are ongoing and instruments are being developed such
as the establishment of a dedicated unit within the Ministry of Public Finances on the
prioritisation of projects or the adoption of multi-annual master plans at national and local
levels. However, although the issue is acknowledged, it does not pertain as such to the
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public procurement process and cannot be dealt with in depth as part of the present strategy.
Under this heading, specific actions will be taken in order to streamline the feasibility study
process, ensuring that sufficient time and resources are allocated to the preparation of
projects and that risks are properly assessed and allocated. These actions will mainly consist
in guidelines to project preparation and template specifications for feasibility studies.
B. Development of procurement strategy
The contracting authorities knowledge of the market is often weak, while procurement plans,
including division into lots and contracts, duration of execution, etc, are deficient, impeding
the intensity of the market reply
In addition to the possibility offered by the 2014 Directives of organising a consultation of the
market prior to launching tenders, guidance will be provided so as to:
-
Increase the degree of market knowledge of the contracting authorities,
Develop a procurement strategy, for major projects, ensuring that the various
components (including lots) are correctly planned,
Organise transparent (including at least publication in SEAP) and useful market
consultations.
It is also emphasised that the mutualisation of contracting authorities resources and the use
of centralised purchasing bodies will be key-enablers to ensure an increased level of
knowledge of the relevant markets.
C. Estimated value
Estimated value is currently seen as an absolute reference, without however being
established using sound methods.
The estimated value actually covers two different aspects,that, although linked, are related to
different objectives. The first objective is to assess the value of the contract that should be
concluded, the second one is to assess the applicable publicity requirements for the tender
procedure (in relation with the thresholds defined). Detailed methodologies will be developed
in this regard and form part of the web-based guidelines, while the principles defined by the
Directives will be integrated in the primary and secondary legislation
It will also be made clear that contract prices cannot be modified in such way that the new,
increased, price would cross a publication/ procedure threshold.
The estimation of the likely tender amount will be better substantiated by the publication in
SEAP of the final contract prices as well as by an increased responsibility of designers
towards such estimate. (standard contracts for designers, developed under the standardised
documentation as presented in pillar 4 of the present strategy, will define that part of their
remuneration will be based on the accuracy of the estimate in line with existing norms,
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standards, statistics, market price, etc.
The rule of automatic rejection of tenders having a value higher than the estimated value will
be made more flexible, especially in the case of procedures where the estimated value is
more difficult to estimate (competitive dialogue, negotiations) and for concessions.
D. Annual Public Procurement Plan
Rules will be defined in order to provide more transparency regarding the contracting
authorities planning, with a focus on the largest projects. Therefore, contracting authorities
will be required to publish either extracts of their annual public procurement plan or prior
information notices for projects above a certain thresholds.
In addition, contracting authorities will be encouraged to publish relevant information from
their annual public procurement plans and modifications to these.
E. Selection of procedure
Measures will be takenand guidance developed so as to encourage the use of restricted
procedures and therefore encourage higher competition between qualified tenderers. For
instance, the requirement to publish the entire tender documentation from the launch of the
restricted procedure will be eliminated since it leads to a much longer duration of restricted
procedures as against open tenders. The key issue is that the subject-matter of the
procedure and the resulting requirements are sufficiently defined when selection criteria are
being established and published so that these criteria remain fully relevant.
Guidance will also be provided to encourage the use, where adequate and relevant, of
competitive dialogue and negotiations procedures with publication of a notice, especially in
these fields where technical specifications are difficult to define.
Furthermore, detailed guidance will be developed so as to ensure that the use of derogatory
procedures, especially as regards contract modifications, is fully justified and regular.
The legislation will define any additional threshold (under the thresholds for publication in the
JOUE as defined by the Directives) for the application of specific procedures, implementing
the principle of proportionality.
F. Drafting tender documentation
The development of standardised tender documents/templates (see relevant details in pillar
4 of the present strategy) will enable contracting authorities to follow and integrate good
practices. Standardised tender documents will actually entail two main aspects: standard
templates, for general application, and, for specific fields / types of projects, “pre-filled” tender
documents that would only require limited tailoring / adaptation.
.As a minimum standard tender documents will include:



General instructions to tenderers and format of specific instructions to tenderers,
General conditions of contract and format of specific conditions of contract,
General specifications and format of specific conditions.
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The scope of standardisation of tender documents is to ensure a better definition of the
needs and related requirements, adequate and balanced conditions of contracts, and that
meaningful tenders are received
Conditions of contract should be balanced as regards risks being retained by both parties.
Contracts should include protection clauses, triggering official controls of the contracts by the
responsible authorities – e.g inspections from the labour institutions in the case of abnormally
low prices for work. Contracts will also include mechanisms for independent check of quality
and performance.
Where standardised documentation is not feasible, guidance will be developed in order to
elaborate performance-based specifications, establish testing standards and measure the
level of achievement of performance (for works and supplies mainly).
Emphasis will be given to the technical proposal, with formats adapted to the field of
contracts, avoiding a simple “copy-paste” from the requirements.
Methods will be developed so as to make consultants more responsible for the quality of
tender dossiers they prepare, including by requirements for professional liability insurance.
G. Selection criteria
The past experience has shown that selection criteria were improperly used, with excessively
high requirements or requirements inducing a bias in favour of or in detriment of specific
operators. The efforts of normalisation of the selection criteria have however not been able to
fully remedy the situation, setting compulsory levels that appear as being very low, while
leading to a very formalistic approach.
As regards selection criteria, the current legalistic approach will be repealed and replaced by
more guidance and better justification. The scope is to establish a strong relationship and
proportionality between the selection criteria and the requirements of the project.
Guidance will be provided by sectors / fields, having in view the complexity of projects.
As detailed in pillar 4 of the present strategy, a feasibility study will be performed regarding
the introduction of a list of approved economic operators, as a pilot project in the roads and
highways procurement area. Results will be analysed and further implementation / extension
decided on this basis.
H. Award criteria
As concerns the definition of the award criterion, guidance will be provided by sectors, having
in view the complexity of projects and the type of procedures, so as to use, when
appropriate, other criteria than the lowest price. Guidance will also be developed in how to
properly assess quality factors.
In particular, the legislation will define that the lowest price criterion will not be used for
intellectual services (unless such services are of a basic level), but the best price-quality
ratio.
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When defining award criteria, contracting authorities will have to ensure that a reasonably
limited number of factors are used (so that they remain meaningful), that such factors
effectively enable to differentiate the bidders and are actually verifiable (especially in the
case of life-cycle costs).
I. Defining deadlines for preparation and submission of tenders
Under the current practice, deadlines for preparation of tenders are almost systematically
defined as the shortest. In many cases, due to various changes, clarifications, etc, they are
extended in a rather hectic way.
It is expected that the focus on a sounder procurement strategy, as well as the market
consultations and related guidance, will invite contracting authorities to define deadlines
adapted to the nature and complexity of the procedure.
In addition, guidance will be provided on defining the borderline between clarification and
modification of the tender documents that will also establish good practices in terms of
extension of deadlines and cancellation vs. relaunching rather than multiple extensions –
modifications.
J. Clarifications to tender documents
In the current practice, there are often a very large number of requests for clarifications,
triggered by the lack of clarity of tender documents. It is expected that market consultation
and the use of standardised documentations, as well as the recourse to more professional
organisations (consortia of contracting authorities, centralised purchasing bodies) will
improve the quality of tender documents. In addition, guidance will be provided on the proper
way of answering to requests for clarifications and the difference between clarification and
alteration. Requirements will be defined to publish consolidated versions of the tender
documents (over a certain degree of changes / clarifications), so as to ensure that the tender
documents are readable and clear.
K. Tender evaluation process
The tender evaluation process will be re-engineered the following way:
 financial offers should not be opened during the opening session but prices should be
communicated after the technical evaluation is finalised, in a public session for
bidders whose technical proposals were accepted,
 European Single Procurement Document (ESPD) in place, in parallel with the
acceptance of post-qualification concept,
 evaluation committee should consist of individuals with expertise in the area of
contract scope, not necessarily only employees of the contracting authority,
 familiarization of the evaluation committee with the content of the tender documents
and thus with the contract objective,
 awareness about the role, tasks and responsibilities of evaluation committee
members shall be ensured,
 clear and free of interpretation criteria for all stages of the evaluation at the moment
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
of launching the procedure is secured,
mechanisms for unitary application of the criteria to all tenderers are disseminated,
The implementation of these measures will take the form of secondary legislation and
guidance published as part of the web-based guidelines.
Guidance will also be provided as regards the preparation of the evaluation report, with clear
and simple templates enabling to understand the reasons for the award decision.
Furthermore, guidelines will be developed as regards the treatment and evaluation of
alternative proposals
The current legal requirement setting maximum period for tender evaluation will be repealed
together with the adoption of the new laws on public procurement, as it has proven
ineffective.
L. Award decisions
When communicating the decision to an award procedure, the contracting authority should
provide sufficient information to all tenderers to enable them to properly assess the reasons
their offer was rejected. It is expected that better information of the non-successful tenderers
will also, in the medium term, reduce the reasons for complaints. Guidance will be developed
in this regard, while the secondary legislation will define the basic obligation for
communication.
M. Notifications / complaints
Prior notification of the contracting authority will become mandatory; a complaint will be
submitted only if the contracting authority does not remedy the situation in due time. The
scope is to make contracting authorities more responsible and to ensure that they have a
real possibility of taking remedial measures.
Mechanisms will be developed so as to ensure:



unitary practices within the panels of the National Council for Solving Complaints
(CNSC),
specialisation of the judges / courts at the level of the Court of Appeals,
harmonisation of the interpretations between the CNSC, Court of Appeals as well as
with the other institutions involved in the public procurement system.
N. Confirmation document
The confirmation document (“document constatator”) will be published in SEAP, for more
transparency. In addition, the final contract price will also be published in SEAP.
O. Contract implementation
A set of actions (including related legislation) will be developed / adopted so as to streamline
information on utilities location and needs for protection / relocation. This will imply
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requirements for utility owners / managers to fully map their networks (within a period of time
of about 2 years) and answer for the authorisations they issue.
All technical obligations entailed in the authorisations and conditioning these latter
(environmental mitigation measures for instance) shall be duly reflected in the tendering
documents and, at the latest, remaining formal obligations shall be cleared out before signing
the contracts.
For authorisations unavoidably issued after the contract signature, notably – although not
exclusively – for design and build contracts (such as construction permits, or complementary
environmental permit), the consequences in terms of possible delays and costs should be
duly anticipated in the contractual provisions.
The independence of supervising engineers (and of consultants involved in project
management) will be ensured, through declarations and checks and the selection
requirement increased and aligned to those applicable for the main works. In addition,
recourse to external and independent laboratories will be developed for the most critical
taking over tests, further guaranteeing the performance of the delivered works.
The role of feasibility studies, related indicators and “general estimate” during the
implementation of the project will also be streamlined including modification of the
Government Decision 28/2008 so as to move from detailed technical indicators and budget
lines to a limited set of budgetary, economic and performance indicators aiming at verifying
the financial feasibility and economic desirability of the project.
In addition, for design and build projects, feasibility studies will no longer be referred to, and
even annexed, to tendering documentation, include compulsory solutions, leaving flexibility
for the contractors to design the projects with regard to the performance objectives defined in
the studies and in the tendering documentation.
Contracts shall also define clear procedure for contracting authorities review of proposals
related to main subcontractors, under the responsibility of the contractor, including checking
the capacity and capability of subcontractor, so that treatment prior and after to contract
signature is substantially the same.
Full guidance will also be prepared on the treatment of contract modifications, in line with the
provisions of the 2014 Directives.
P. Final analysis of implemented contracts
Guidance will be prepared so as to ensure analysis of the performance of the procurement
function at the level of the contracting authority at the end of the budget year, by reference to
APPP or procurement strategy information, by reference to deadlines undertaken by
contracting authority, in final to have an auto-evaluation and lessons learned.
This will also include evaluation of the objectives and level of performance actually reached.
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The publication in SEAP of the final contract price (including all possible costs overruns,
modifications, etc) will be made compulsory.
Q. Transparency and confidentiality
Increased transparency is an objective per se and most information and documents related
to tender procedures are public by nature.
In this regard, the treatment of confidential information submitted by bidders will be clarified.
Bidders might indicate that some parts of their tenders are confidential, but should support
the burden of proof in this respect.
Furthermore, during the period of evaluation, the composition of the evaluation committee
should remain confidential.
R. Horizontal measures
A number of horizontal measures will have a positive influence on the overall public
procurement process. These include:




Centralized procurement bodies,
Consortia of contracting authorities,
Access to external expertise (CPBs, PP technical experts open data base),
Curricula development and training for procurement officers.
Measures related to internal and external controls and to the prevention of conflicts of
interest, as detailed below, will also improve the regularity and quality of the process.
1.1.2
Actions to ensure regularity and quality of the process: scope and expected
impact
The overall objective under this second section is to ensure that the public procurement
process is regular and of good quality. This implies that the control environment is such that,
beyond the strict observance of the applicable laws and rules, good practices are applied so
that, by enhanced transparency and increased competition, best value for money is obtained.
To this aim, the following actions have been identified:
A.
B.
C.
D.
Develop internal control
Streamline ex-ante external control
Improve and extend systems to prevent conflicts of interests
Streamline ex-post control
Page 13 of 47
A. Develop internal control
Contracting authorities should progressively shift from compliance-driven to an effectiveness
approach, in which internal control systems are above all set-up to ensure that the goal of the
procurement process is achieved: obtaining the best value for money.
A strong internal control system at the level of each contracting authority would significantly
reduce at an early stage the risk of irregularities and errors and ensure that contracting
authorities achieve their objective of obtaining the best value for money. Furthermore,
efficient internal control would also reduce the need for external control.
It should be emphasised that, as a general rule, the internal control is a system aiming at
ensuring the head of the contracting authority that adequate checks and balance exist,
allowing sound decision-making. In this regard, when disagreements appear, the system
allows for a mediation mechanism. Ultimately, the head of the contracting authority has the
last say.
a. Scope of the internal control system
The long-term goal is to set-up internal controls systems at the level of all contracting
authorities in Romania. A functioning system of controls should become mandatory, its scope
should be proportionate to the capacities and the intensity of procured activities of the
contracting authorities.
The internal control systems should cover all phases of the public procurement process from
the preparation of tenders up to the performance of the contract, while actual requirements
should be differentiated function to the size of the contracting authority, so as to avoid
developing a high burden on smaller contracting authorities.
In this regard, data collected from SEAP for the period January 2013-March 2015 show that,
out of more than 15,000 contracting authorities recorded by the system, only 4,366 have
been launching tender procedures over that period (above the direct agreement threshold).
Furthermore, the data show the following distribution of contracting authorities against the
cumulated share of estimated values of the procedures launched:
Share
of
total Number
estimated value of contracting
tender
procedures authorities
launched – 01/201303/2015
40%
21
50%
44
75%
190
90%
660
100%
of
4,366
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Based on their activity, it is therefore reasonable to assume that there are about 40 large
contracting authorities, 600 medium contracting authorities and 3,700 small contracting
authorities. The requirements for internal control should therefore integrate the principle of
proportionality.
Therefore, for the smaller contracting authorities, the internal control will focus on:


Regularity check, through guidelines similar to those used by external control;
Verify that guidance on good practices has been applied.
Whereas, for larger contracting authorities, more quality / performance controls, through
dedicated internal departments, will be carried out
The manner in which internal control systems should be set-up by contracting authorities will
be described in the web-based guideline as part of a "manual/guideline". Moreover, a team
should be set-up to support implementation of internal controls on the ground.
b. Critical standards which should be followed by all contracting authorities
(including smaller ones)
The Secretariat General of the Government (SGG) is the central authority responsible for
issuing and implementing the Governmental policy on internal control systems. The SGG will
set up internal control standards for effective management of the public procurement process
(including process description, flow of information and responsibilities matrix) to provide
generic guidance and set out the requirements for the internal control activities of all
contracting authorities.
Internal controls will include at least the following phases: preparation of tenders, drafting the
tender documents, carrying out the tender procedure, performance of the contract.
In terms of process, the system will include the following main principles:
 Segregation of duties, at least between operational functions and financial/payment
functions, procurement officers and technical & economic departments. The
requirements for segregation of duties will also depend on the size of the contracting
authorities.
 The "4 eyes principle", implying that tasks are clearly divided into two steps: initiation
one the one hand, and verification on the other hand, performed by different individuals.
 Substantiation of the internal visas such as those provided by the economic and legal
departments, using check lists and other instruments.
The internal control system will also include a policy document on conflicts of interest.
A specific set of actions for public entities will consist in reinforcing the role of the preventive
financial controller. By law, the head of each public entity appoints a preventive financial
Page 15 of 47
controller, in charge of verifying legality and regularity in relationship with financial and legal
operations. The actions considered are the following:





Introducing specific checks prior to the launch of any procurement procedure,
Developing detailed check lists and guidance so as to enable the preventive financial
controller to verify the regularity of the process,
Reinforce the integrity rules for preventive financial controllers, ensuring that they are
free of conflicts of interest,
Reinforce the independence of preventive financial controllers in the exercise of their
functions, by generalising the requirement for a prior agreement of the Ministry of Public
Finances in case of suspension, change or dismissal of the financial controller.
Ensure that preventive financial controllers receive adequate training in the field of public
procurement.
Institutions competent for controlling and auditing the efficiency and performance of public
entities will pay attention, in the context of the supervision system detailed in pillar 5, on the
effectiveness of the internal control mechanisms, as potential major source for shortcomings.
c. Standards for larger contracting authorities
Two of the largest contracting authorities, namely the National Company for Roads and
motorways (CNADNR) and the National Administration “Romanian Waters” (ANAR) will be
subject to a pilot project carried out by an external company and aiming at:





assessing effectiveness of the current internal ex-ante control functions;
improving the internal control functions at the level of each pilot institution, having in view
their particularities;
ensuring that internal control targets regularity as well as quality;
receiving support to implement the new internal control systems;
implementing the ISO Anti-bribery Management System Standard, once available.
Once efficient internal control systems are implemented within CNADNR and ANAR, these
will be rolled out to all larger contracting authorities in Romania, taking into account the
experience gained within the pilot project. Lessons will also be learnt that could apply to
smaller contracting authorities.
Page 16 of 47
B. Streamline ex-ante external control
a. Main directions
The main directions of improvement of the ex-ante external control can be summarised as
follows:







ex-ante controls (of tender documents and of tender evaluation) will be carried out by the
same institution, the National Agency for Public Procurement (ANAP), ensuring
consistency of interpretations,
ex-ante controls will entail both regularity and quality aspects,
technical expertise will be made available to the ex-ante control body, both by full time
employees and hiring of experts,
for aspects mainly pertaining to regularity, the results of ex-ante controls will be
compulsory to the contracting authority, although challengeable ,
for aspects mainly pertaining to quality, the results of ex-ante controls will first be subject
to a mediation procedure with the contracting authority, following which they will become
compulsory to the contracting authority, although challengeable .
the systematic ex-ante control of tender documentation will gradually disappear, so as to
be replaced by control on a sample basis, in line with the progressive support to and
accountability of contracting authorities.
the basis for sampling will include procedures being launched (above the direct
agreement threshold, with or without publication of a tender notice), important contract
modifications and re-evaluations of tenders further to decisions by Review Body or
Courts. As regards contract modifications, those that are substantial as per the definition
of the Directives require the performance of a new tender procedure and will therefore, by
definition, be included in the sample. In addition, non-substantial modifications will be
included in the sample when their value is above a certain threshold (5% of the initial
contract value or when a change of contractor is being considered.
The following paragraphs provide details on the mode of implementation.
b. Phasing out of systematic ex-ante control of tender documents
The development of internal control, the improvements of the public procurement process
(procurement strategy, market consultation, publication of final contract prices, evaluation of
results, etc), the mandatory notification of contracting authorities prior to lodging complaints
as well as the establishment of proper monitoring and supervision shall increase the
accountability of the contracting authorities. In addition, the development of adequate
guidance, help-desk, professionalization of procurement officers, development of centralised
purchasing bodies and of consortia of contracting authorities are meant to reinforce the
administrative capacity of the CAs.
Therefore, the progressive shift from systematic ex-ante control of tender documents to
Page 17 of 47
sample based verifications will be linked with a parallel gradual increase of accountability and
capacity of the contracting authorities. The implementation of the measures of operational
support and guidance provided to contracting authorities, as presented under pillars 2 and 4
of the present strategy will also contribute to the process. More specifically, the systematic
ex-ante control of tender documentation will be maintained as a transition phase until the
publication of the web-based guidelines and standardised documents (July 2016).
The move from systematic control to sample based control will also enable the ex-ante
control body to redirect resources towards a more in-depth quality control and will then be
phased in accordance with the parallel reinforcement of the capacity and expertise of the exante control body
The pace of the phasing out will take into account the measured performance and reliability
of contracting authorities, against the indicators used when preforming the monitoring and
supervision functions described under pillar 5 of the present strategy.
The methodology for gradually phasing out the systemic control will be detailed, regarding
the envisaged pace and the integration of the above considerations, in agreement with
Commission services. This methodology shall also indicate the sample of awarding
procedures that might be subject of the ex-ante controls (on basis of annual assessments of
the existing resources and of the efficiency of ex-ante control for tender documentations and
for evaluations.)
c. Sampling
The sample based control will integrate two main elements, namely risk analysis and random
basis. The risk analysis will mainly include two sets of factors: factors related to the size and
complexity of the specific tender procedure and factors related to the capacity of the
contracting authority (based on previous history). This enables to define four main categories
of risks, as follows:
1.
2.
3.
4.
High value / complex tender with low capacity of contracting authority,
Low value / simple tender with low capacity of contracting authority,
High value / complex tender with reasonable capacity of contracting authority,
Low value / simple tender with reasonable capacity of contracting authority.
For each of the main risk categories, a yearly target rate of verification will be defined. This
target rate will obviously take into account the institutional resources available. It will define
the probability for a tender of being subject to ex-ante control, probability that will be different
for each risk category.
When a tender procedure is being initiated by a contracting authority, it will be classified into
one of the above risk categories. A random procedure will then determine whether the
specific procedure is subject to ex-ante control or not.
Therefore, the sampling method will be widely based on random basis, to make sure there is
Page 18 of 47
a real open probability for any contracting authority to be subject to control and that such
control cannot be anticipated by the contracting authorities.
The risk and subsequent control policies will be updatable and consider the adequate risk
factors (type of contracts, sectors, type of procured activities, capacity and reliability of
contracting authority), building on the experience.
d. Contract modifications
Contracting authorities will be required to notify the ex-ante control body prior to approving
important contract modifications. Such notifications will therefore enter into the basis for
sampling. The verification will occur prior to the approval of the contract modification (and of
any subsequent payment), so that it clearly pertains to control.
As regards contract modifications, those that are substantial as per the definition of
Directives require the performance of a new tender procedure and will therefore,
definition, enter within the basis for sample. In addition, non-substantial modifications
enter within the basis for sample when their value is above a certain threshold (5% of
initial contract value or when a change of contractor is being considered).
the
by
will
the
e. Regularity and quality
The notions and regularity and quality require some clarification.
Verification of the regularity is mostly based on the observance of the legal framework,
focusing on issues such as the type of procedure, publication requirements, duration, nondiscriminatory selection and award criteria, etc.
In practice, regularity will entail:
1. Verification of the tendering notices and relevant related documents, allowing for
meaningful checks. In particular, the proposed selection and award criteria will be
justified against the description of the project, including, whenever necessary, through
consideration of the relevant chapters of the technical requirements (that justify
requirements for some specific expertise or the methodology for assessing some
award criteria).
2. Screening of key elements, based on sectoral checklists of the technical
requirements, to track possible tailored requirements on supplied items or
technologies.
3. Transparency in the clarifications brought to potential bidders.
4. Transparency in the requests for clarification addressed to bidders.
5. Transparency of the selection and award decisions.
6. Regularity of the contract modifications.
Points 1 to 3 pertain to the verification of tender notices and related documents (all published
Page 19 of 47
in SEAP), points 4 and 5 pertain to verification of the tender evaluation process while point 6
pertains to verification of contract implementation.
Until now, point 1 verifications were carried out by ANRMAP on a systematic basis, while
points 3 to 6 were verified by UCVAP based on sampling. Point 2 verifications were not
performed. As already mentioned, verifications were carried out in a formalistic and too
standardised manner, so that the related methodologies require significant improvement.
Additionally, verification of the quality requires tracking requirements or procurement
strategies which would impede the intensity and the quality of competition, such as
disproportionate requirements, inadequate division into lots, lack of usefully designed lots,
unreasonable execution delays or contractual conditions, excessive recourse to design and
build procedures, etc. These aspects will be addressed in corresponding guidelines and,
where applicable, standardised documentation.
In the long run, this type of verifications shall be systematically applied jointly with the
regularity check to all procedures subject to the sample, although more complex projects are
likely to raise more concerns. Deviations from the recommended practices in guidelines /
standardised documents would be the main factor triggering in-depth verifications.
It needs to be clarified that quality issues are less clear cut than regularity issues and might
include aspects that could be perceived as partly subjective (for instance the adequate level
of detail of field investigations in a design-build tender or the adequate period of time for
preparation of tenders in a complex project). However, an accumulation of quality
deficiencies in a specific tender procedure would lead to a situation where competition could
be seriously hampered.
As a matter of exemplification, in the case where a motorway construction project would be
tendered with a very poor level of field investigations being provided to tenderers, with design
and geotechnical risks being transferred to the contractor, while the time available for the
preparation of tenders would not allow tenderers to perform the missing investigations so as
to effectively assess the risks and substantiate their tender price, then it is likely that a
significant number of potential tenderers would be deterred to get involved into the process
and the principles of competition and value for money would be widely affected.
Furthermore, a specific issue pertaining to regularity is that of detecting biased technical
specifications. This risk is mainly related to a number of sectors such as IT or procedures
involving a significant part of equipment. It is acknowledged that identification of such rigged
specifications might be fairly difficult to be performed since it requires an in-depth knowledge
of the market in the related field. Therefore, the main element of control in this regard
remains the market itself, through the complaint mechanism. In addition, as regards the
screening of technical specifications against possible bias as part of the ex-ante control, a
pragmatic approach has been retained, as follows:

introduce as part of the sectorial check-lists some key elements to be checked (no brand
names, in exceptional cases brand name with the mention “or equivalent”, focus on
Page 20 of 47


functional and performance specifications whenever possible, etc),
develop specific check lists in order to identify possible biased specifications for two pilot
sectors (medical equipment and development of IT systems), for a fully-fledged control to
be performed as part of the ex-ante control. This will also require the necessary
involvement of experts in the related fields.
evaluate, after one year of functioning, this pilot phase, against the following main criteria:
effectiveness (whether the desired results have been obtained, that can be measured by
a decrease in the number of complaints lodged by market operators in relation with
biased requirements for tenders in the two pilot sectors), efficiency (whether the
generalised costs of the pilot system, in terms of delays to the process and human
resources mobilised, are proportionated with the benefits), time impact. Further to this
evaluation, ANAP will take the decision on whether to extend or not this type of
verifications.
f. Types of control
Taking into account the resources available to the ex-ante control body, as well as the
previous experience of both ANRMAP and UCVAP, the following aspects are underlined:
-
-
-
-
-
The current average of 7 tender notices being checked per person and per day does
not allow any in-depth analysis. There is also an urgent need to streamline the
verifications, to make it less formalistic, more meaningful and add a screening of key
technical specifications.
Verification of both regularity and quality of a tender notice and related documents
would require in average about 5 man-days, that is about 20 times more resources
than the current verifications. This would increase significantly when it comes to the
detailed verification against possible bias in technical requirements.
UCVAP currently verifies about 8% of the total sample basis (tender procedures and
negotiations without publication of a notice), that is about 2,000 verifications per year.
A re-engineering of the related controls is necessary, by requiring the observers to
attend only the key phases/steps of the evaluation and the control of tendering
documentations to be focused on quality aspects. This will enable to would increase
the efficiency of the use of human resources involved in the control activities and
therefore the overall number of procedures controlled, with a target number
comprised between 4,000 and 5,000 per year.
Therefore, the following conclusions can be drawn:
There is a need to allocate additional resources both for verifications of tender notices
and related documents and for verification of tender evaluation and contract
modifications,
Since it will be difficult to multiply the resources of the ex-ante control body by a factor
of 20, during the phasing period out of the systematic ex-ante control of tender
notices and related documents, quality checks will be gradually integrated in respect
of a limited number of procedures. In parallel, improved regularity checks will be
Page 21 of 47
continued for all procedures until July 2016. After July 2016, the number of regularity
checks will gradually decrease but will remain significant. More emphasis will be put
on the quality checks.
-
In the long run the objective would be that the sampled procedures will be subject to
the full scope of verifications, on regularity and quality, covering the whole ex-anet
cycle (tendering notice, technical documentation based on check lists, clarifications to
tenderers and selection and award decisions)
g. Check lists
Controls will be adjusted to the specificity of the sectors by using checklists (IT, infrastructure
projects, medical equipment, R&D, energy, etc). The check lists will identify issues mainly
pertaining to regularity and those related to quality.
h. Technical expertise
The ex-ante control body will secure the appropriate technical expertise, using both internal
and external resources. Considering that assessing the legality of the selection criteria or the
regularity of the evaluation of a technical proposal requires a solid understanding of the
technical specifications, ensuring the appropriate technical expertise is essential. In this
regard, even when focusing on regularity issues only, the ex-ante control will not review
exclusively the tender notice and instructions to tenderers; on the contrary, it will consider the
entire tender documentation, including contract and specifications / terms of reference. The
review will be guided by check-lists that will enable the controller to spot key tailored or
discriminatory requirements in the technical documentation, mostly related to supplied
components or technology.. It needs to be emphasised that the above measures will gain
more efficiency when linked with those described in pillar 4 of the current strategy, including
development of standardised tender documentation, with better structured templates, more
detailed presentation of the project including objectives and scope, etc.
In order to implement the measures of streamlining of the ex-ante control, the ex-ante
control body within ANAP will require increased human resources, particularly as regards
technical expertise. ANAP will therefore secure technical expertise through two
complementary ways, namely by hiring about 50-60 technical specialists for the most
frequent needs and by setting up framework agreements with the double aim of securing
highly specialised resources for specific technical fields but also of ensuring additional
technical resources when required.
Based on the analysis of existing procedures, it is envisaged that the 50 to 60 technical
specialists to be hired by ANAP would include about 25-30 specialists in various construction
fields (roads, rail and public transport, civil engineering, water and wastes), about 15
specialists in IT and 10 to 15 specialists in other sectors including health, finance, disposing
of operational experience in managing procured contracts etc. The level of remuneration of
Page 22 of 47
ANAP is meant to be sufficiently attractive, as part of the Romanian public sector, to enable
to hire and retain technical specialists in these fields.
Where the level of expertise required will be significantly deeper, the framework agreements
will enable mobilisation of adequate experts (with the corresponding level of remuneration)
within a reasonable time period (i.e. without triggering additional delays against the overall
period necessary for ex-ante control).
i. Results of ex-ante control
For issues identified as pertaining to regularity, the results of the ex-ante control will be
directly compulsory to the contracting authority. Depending on the phase in which the
irregularity is identified, the tender notice will not be published or the procedure will be
suspended until the irregularity is remedied. In certain cases, it is also possible that the only
effective remedial measure consist in cancellation of the procedure.
For issues identified as pertaining to quality, for which, as mentioned above, the assessment
is less “black and white” and leaves some room for interpretation. As an example, the time
for preparation of a complex tender (when bidders are required to prepare a concept design
or equivalent) should not be limited to the period defined by the law as being the minimum
one. Whereas guidance will provide elements in order to assess the reasonable time for
preparation of tenders, the exact period adequate for each individual case remains a matter
of interpretation.
Therefore the results of the ex-ante control in this regard will subject to a mediation
procedure with the contracting authority. The outcome of the mediation will then become
compulsory to the contracting authority.
In accordance with the general legal framework, the decisions of the ex-ante control body will
be considered as administrative acts, therefore challengeable by the contracting authority in
front of the relevant courts. The decisions will however remain in force unless and until
otherwise decided by the court.
j. Time impact
The impact of the ex-ante control system on the time-lapse for individual procedures is
outlined in the following table:
Page 23 of 47
Phases of ex-ante control
Maximum time period (in working days)
Sampling
1 working
contracting
documents)
day (from
authority,
notification by
with
relevant
10 working days delay for publication of
tender notice
Tender
documentation
Regularity and quality exante control
Not later than 10 days prior to the deadline
for submission of tenders (from sampling
decision to issuance of initial control results)
5 working days for mediation procedure, if
required by the contracting authority (from
issuance of initial control results to final
control results)
Control is performed during the period of
tender evaluation, directly by ANAP
observers attending key decisional meetings
of the evaluation committee, with verification
of the main steps of the evaluation (technical,
financial, qualification). Exceptionally, Up to 3
working days per step may be needed,
additional to the evaluation process itself, in
case internal clarification / arbitration would
be needed.
Ex-ante control of tender evaluation
Ex-ante control
modifications
of
important
5 working days (additional to the time
contract required by the contracting authority to
assess and agree the related contract
modification).
30 working days delay for publication of
tender notice
Ex-ante control of bias
specifications (pilot sectors)
in
technical
Not later than 10 days prior to the deadline
for submission of tenders (from sampling
decision to issuance of initial control results)
Page 24 of 47
k. Operational aspects
The time periods mentioned in the above table do not take into account the periods
necessary for the contracting authorities to implement the resulting corrections / remedial
measures. The experience of the ex-ante control of tender documentation performed since
2011 has shown that the overall time period between the first submission of tender
documents and their actual publication was sometimes extremely long, while the number of
rejections was very high (in average, more than one rejection by procedure being published).
In order to avoid such problems in the future, the following will be undertaken:
As a matter of principle, the results of the ex-ante control will be complete in relation with
those aspects that have been checked: all points to be verified will be analysed and the
related check lists will be completely filled so that all irregularities and problems are raised.
This implies that no additional comments will be issued by the ex-ante control at later phases
with regards to those aspects.
When detecting an irregularity, the ex-ante control will also guide the contracting authority to
the relevant instructions, guidelines, standardized specifications, as the case may be. The
ex-ante control will not provide guidance or assistance as such but will ensure that the
contracting authority is made aware of the means made available in order ofr it to take the
corrective / remedial actions.
Given the sensitive aspects of ex-ante control as part of the conduct of procurement
procedures, the National Agency for Public Procurement will also implement an adequate
human resources policy aiming at ensuring rotation of controllers.
In order to ensure a consistent approach across the various phases of ex-ante control, the
ex-ante control body will:
Establish a structure in charge of providing methodological guidance to controllers,
Ensure that, for each given procedure, operational cooperation is being established between
those controllers mainly in charge of verifying tender notices and related documentation and
those mainly in charge with the verification of the evaluation.
Page 25 of 47
C. Improve and extend systems to prevent conflicts of interests: improper influence
a. Conflicts of interest and role of the contracting authority
The 2014 Directives provide for a new, more comprehensive definition of conflict of interest
in the field of public procurement. The definition refers to any situation in which persons
involved in or able to influence the procedure by which a purchaser awards a contract, have
a direct or indirect financial, economic or other personal interest that could jeopardise their
impartiality and independence in that procedure. On this basis, Romania shall take steps to
prevent, identify and address conflicts of interest, the contracting authority having the leading
role in this respect. A procedure potentially touched by conflict of interest will be at risk of
cancellation.
A conflict of interest refers to a situation where the impartiality and objectivity of a decision of
a contracting authority is or might be perceived as being compromised by a personal interest
held or entrusted to a given individual. Relevant personal interest may be of financial or nonfinancial nature and it may concern a personal or family relationship or professional
affiliations (including additional employment) or "outside" appointments or former
employments or appointments) and other relevant outside activities.
In order to maintain public trust and confidence in the contracting authority activities, to
protect its staff from unjustified suspicion and, in wider terms, to maintain trust and
confidence in the public procurement system, it is important not only the actual
independence and impartiality, but also the perception on these two elements. Therefore,
even the appearance of conflict of interest is by itself to be prevented and avoided, even if it
turns out to be unsubstantiated.
Furthermore, the contracting authorities are obliged to treat economic operators equally and
non-discriminatorily and to act in a transparent way. The contracting authorities should be
driven by their active role in the application of these principles, including in their activities to
spot any conflicts of interests and take appropriate preventive and remedy measures.
As part of the internal control system to be established, all contracting authorities shall
elaborate and adopt a distinct policy document regarding the conflicts of interest, as required
by future legal provisions..
This document shall cover the following:





the whole procurement process and the management of the subsequent contracts,
meet the requirements of the national procurement regulations and the EU Public
Procurement directives,
include a specific chapter dedicated to declarations of absence of conflict of interests,
include reference to gifts and other hospitality actions, which can also be deemed to be
inducements. This can occur during, before or after any procurement process and during
the management of any subsequent contract or procurement,
ensure that the body maintains records of any conflicts which have arisen, evidence how
Page 26 of 47



they were dealt with and the follow-up actions undertaken. The policy of maintaining
records will allow future conflicts to have a reference point,
include reference to the internal sanctions resulting from undeclared conflicts of interests.
Sanctions must be appropriate and a act as a deterrent to breach the rules,
include an Annex providing some common examples of such conflicts,
address the situations when staff leaves a public sector organisation, in particular a post
in Government or Local Government (so-called "revolving door" situations). Staff should
abide the obligation not to reveal confidential information accessible during the job and
should not benefit from any subsequent conflicts of interests which may occur after
leaving the job.
This document will be elaborated by contracting authorities on the basis of guidance /
template elaborated jointly by ANI, ANAP, SGG (as competent for issuing rules on internal
control) and the national agency for public administration. This guidance will provide some
common illustrative examples of conflicts of interests and the corresponding template will be
annexed to the legal / regulatory act requiring contracting authorities to elaborate the above
document and to implement the corresponding mitigation measures.
b. Repeal automatic exclusion of operators rule
The current provisions of the Government Emergency Ordinance 34 / 2006 providing for the
automatic exclusion of economic operators that could be in a situation of conflict of interest
involving managers of the contracting authority shall be repealed. Such remedy measures
cannot be systematically taken against the operators. The provisions of ordinance 34/2006
will be modified by:
- replacing the notion of “one share” by defining the type and intensity of critical decisional
influence;
- replacing the reference to “4th degree” relative by the intensity of releation effectively
verifiable by the detection system detailed below;
- the exclusion of bidders, as remediation measures, will be the ultimate solution and will be
taken only after ensuring that contracting authorities have taken all measures to eliminate
the situation leading to a possible conflict of interest and after giving the bidders the
possibility to clarify the data/information
d. Identification and detection of conflict of interests
The first basic measure to be taken by contracting authorities in order to identify and detect
conflicts of interest would be to oblige any person involved in a procurement procedure to fill
in a declaration of absence of conflict of interests. This should apply to:

the head of the contracting authority and anyone to whom he/she delegates his/her
Page 27 of 47




duties,
members of the management board or similar decision-making positions,
staff contributing to preparing/drafting the tender documents,
members of the evaluation committee,
internal experts performing any task connected with preparing the tender documents
and/or evaluating the bids.
In the case of the head of contracting authority, key decision-makers as well as procurement
officers, the declaration would take the form of an annual statement of interests (including
past employment or similar).
In the case of persons involved on a case by case basis, such declaration made once but
considering situations afferent to each stage of the procurement procedure (preparation,
evaluation, monitoring and closure)..
Filing a declaration of absence of conflict of interests should be considered at each stage of
the procurement procedure (preparation, evaluation, monitoring and closure).
The occurrence of a conflict of interests is not necessarily illegal in itself. It is, however,
irregular to take part in a procedure while being aware of a conflict of interests. It is therefore
necessary to disclose any potential conflict of interests before taking any part in the
procurement procedure and to take appropriate preventive measures. This also allows the
contracting authority to take adequate prevention measures.
The second measure to be taken by the contracting authority consists in performing two
types of checks, as part of internal control::


prevention: to detect apparent/potential/actual conflicts of interests
sanction/remedy: to detect conflicts of interests, to sanction the person concerned and to
remedy any wrong caused by the conflict of interests.
Checking mechanisms will focus on the declaration of absence of conflict of interests, which
should be examined in the light of additional information:



external information (i.e. information about a potential conflict of interests provided by
outside persons who have no connection with the situation that generated the conflict of
interests, potentially including whistle-blowers and media),
checks performed on certain situations showing a high risk of conflict of interests, based
on internal risk analysis or red flags,
checks performed by the Prevent system.
In order to assist detecting conflicts of interest, an instrument has been developed by the
National Integrity Agency (ANI). This instrument, (PREVENT) system, will allow the detection
of certain potential conflicts of interest, focusing on kinship and shareholding relations
between staff members of the contracting authority (decision makers and members of the
evaluation committee) and decision makers of the tenderers. It will be applied for all
procedures, regardless of the sources of funding. If a potential conflict is detected, an
Page 28 of 47
integrity warning will be issued by ANI to the contracting authority which will be obliged to
take the adequate measures prior to the conclusion of the procedure. One essential element
of the PREVENT system will be to ensure that the contracting authorities will be obliged to
effectively fill in the data required by the integrity form. This could be achieved by making the
filling of the form an obligatory phase in the public procurement cycle and by obliging the
CAs to fill in the date directly in SEAP. Furthermore, failure by the contracting authority to fill
in the required information in the Prevent system will lead to the automatic suspension of the
procedure.
The National Agency for Public Procurement and particularly the ex-ante control body will be
informed on the outcome of the checks performed by ANI. The contracting authority will be
obliged to report to ANAP on the measures effectively taken following an integrity warning.
This above verification process is performed automatically from SEAP, being initiated when
the bidders are known (opening of bids). The entire verification flow, until information of
contracting authorities and ANAP, does not exceed 8 working days. In the verification
process, contracting authorities will acknowledge that, while the results of the Prevent
system are based on hard data, the information obtained from whistleblowers and media
cannot be judged as evidence per se. However, ANAP, under external control, or the
contracting authorities, as part of internal control, should actively check whether the
information and if it may impact on the procedure. All data sources at their disposal to check
the accuracy of information should be used.
d. Consequences
When a potential conflict of interest is detected, the contracting authority should take all
measures to prevent it. Prevention measures are to be differentiated and assessed in light of
the role and position of the individual affected by a potential conflict.
Therefore, if the relevant individual is member of the evaluation committee, one of the
procurement officers involved in the project or in a similar position, the respective person can
be replaced in the procedure, with an individual not affected by the potential conflict of
interest who will take over the role and responsibilities of the person potentially in conflict of
interest in the relevant procedure.
When the individual potentially in conflict is part of the management / decision – makers of
the contracting authority, the solutions to be implemented are more difficult to implement and
require a proper assessment of the available solutions. In principle, the person potentially
affected by a conflict of interests should excluded from the respective procedure. This implies
that the individual would receive no tasks linked to the procedure, would be discharged from
any responsibilities related to the procedure and ideally would voluntarily refrain from any
direct or indirect involvement.
Whereas this solution might prove efficient when the responsibilities of the individual would
Page 29 of 47
not be directly linked to the scope of the procedure (e.g., the head of road maintenance for a
motorway construction tender), it becomes inadequate when the individual is directly and
necessarily involved in the procedure (e.g. head of the contracting authority or head of the
procurement department). In these cases, the only remaining solution is to exclude the
economic operator from participating to the procedure, since its participation would
unavoidably lead to a situation of conflict of interest. The main difference against the current
provisions of OUG 34/2006 consists in the fact that exclusion of the economic operator would
be the ultimate recourse and by no means an automatic solution.
For all the cases mentioned above, the contracting authority is responsible to take all
necessary measures, including adequate publicity, in order to ensure the transparency of the
procedure and remove the potential risk of conflicts of interest or the mere perception on the
existence of a potential conflict of interests.
It should be also emphasised that the development of centralised purchasing bodies and
consortia of contracting authorities, as described in pillar 4 of the current strategy, might
reduce direct involvement of staff of the contracting authority in the related procedures,
therefore containing the risks of conflicts of interests.
When a conflict of interests that has not been declared by the relevant individual is being
detected, the contracting authority might consider the following measures, in addition to the
above:



take disciplinary or administrative action/sanctions against the official concerned, or
against the bidder
correlate its findings with other data and use them to perform risk analysis,
ensure publicity in order to ensure that decisions are transparent, to prevent and deter
any potential similar occurrences.
If the conflict of interests is of criminal nature, the authority should, in addition to the
measures set out above, act in line with the relevant legislation and refer the case to the
competent authorities.
In order to carry out the required remediation measures, contracting authorities will rely on
dedicated guidance issued by ANAP, detailing the desired approach with regard to the
possible situations encountered and in particular regarding elected and public officials
disposing of critical indirect decisional capacities. This guidance will be supported by
illustrative examples.
The new system to be implemented foresees tht after receiving the notification for integrity
warning, the contracting authority must carry on all the verifications necessary to clarify the
situation of potential conflict of interest and after that will submit its documented opinion
regarding the accuracy of the data/information mentioned in ANIs notification back to ANI.
ANI will assess the information (based on documented evidence) and either will maintain its
position or will take into consideration the new data/information provided.
Page 30 of 47
In case ANI maintains its position, the contracting authority must take all necessary
measures in order to eliminate the situations that lead to a conflict of interest.
ANAP will check if the corrective measures taken by the contracting authorities are in
accordance with those mentioned in section 3 of the Integrity Statement Form and will also
monitor that all these measures are in accordance with the provisions of public procurement
legislation regarding the conflict of interest.
The signature of a contract without remedying the possible situation of conflict of interest as
presented in the Integrity Warning will trigger automatically the procedure of evaluation of the
conflict of interest, as foreseen in Law no. 176/2010 on integrity.
e. Improper influence
Although the use of the Prevent system will be compulsory for all public procurement
procedures, Prevent will not be able detect all potential conflicts of interests. Therefore, the
absence of an integrity warning will not exonerate the contracting authority from its
responsibility and active obligation to identify conflicts of interests nor relieve the control
bodies from verifications on the matter.
In particular, since Prevent will mainly focus on kinship and shareholding (or similar)
relations, it is unlikely to detect conflicts of other nature, such as improper influence. The
situation is fairly similar in the case of checks and verifications carried out by the contracting
authority or by ex-ante control bodies.
As regards the prevention of improper influence, it should be mentioned that the actions
taken by the contracting authorities might have a relatively limited effect, while the most
significant impact is expected from the investigation carried out by the judiciary. Preventive
actions under the responsibility of the contracting authorities entail:


implementation of ISO Anti-bribery Management System Standard, when available (as
explained above, this type of action would mainly be required for the larger contracting
authorities),
setting-up a set of “red flags” as part of the internal control system.
A particular situation linked to improper influence to be prevented by the contracting
authorities is when economic operators adopt a collusive attitude, detrimental to public funds
and interests. Special attention should be given to cases when an economic operator is in a
position to approve / reject / monitor, directly or indirectly, the performance of works or
services or the provision of goods by another economic operator. The most frequent cases
are those of supervising engineers / works contractors, assistance to project management /
operator in charge of a project component, etc.
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In such cases, the contracting authority should put in place a number of mechanisms aiming
at:
-
-
ensuring that the two economic operators are fully independent from each another; in
case the first operator is already hired at the time of launching of the tender for the
other operator, that second operator will have to demonstrate independence from the
first one. If the tenders for the two operators are launched at the same time, the
contracting authority should define a clear rule so as to ensure independence (for
instance, in case the preferred tenderer for works is linked with the preferred tenderer
for supervision, the tender for supervision would be awarded to the second ranked
tenderer).
ensuring that the operator that is in a position to control the performance of another
one …? acts impartially and independently. For instance, in the case of works
supervision, the contracting authority should define a number of key tests (for
instance, prior to taking over) that would be performed by a third party (such as an
independent laboratory).
As regards improper influence, detection will mainly rely on:



complaints submitted by economic operators or third parties,
Whistler blowing from relevant parties, including officials from the concerned contracting
authorities. Dedicated function will be entailed in ANAP website, guaranteeing the
anonymity of the complainers / whistle blowers
additional outside information – media investigations.
In case a situation of improper influence is suspected, ANAP shall take the required
measures, alerting, the contracting authority and notifying the official investigation bodies and
cooperate with them.
It will in this regard establish working mechanisms with the investigation bodies, including
exchange of information, etc.
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D. Streamline ex-post control and audit
In order to remedy the existing overlapping of various institutions, the ex-post controls
currently carried out by ANRMAP will be replaced by the audit performed by the Court of
Accounts (the Audit Authority in the case of EU funded projects). The Audit Authority is a
body within to the Court of Accounts, for audit of EU funds, The roles and responsibilities of
the two entities are clearly defined and do not overlap.
It is mentioned that audit is already performed by the Court of Accounts, in accordance with
the base functions of the Court as defined by the law and relevant regulations. This audit
takes place after the period of execution of the budget and is not an operational control (so
that the notion of “ex-post control” is not adequate).
In the new context, in order to establish an efficient public procurement audit, the system will
entail the following:





provision of adequate human resources, training and tools to the Court of Accounts;
harmonisation of the procedures and methods used by the Court of Accounts and the
Audit Authority in the performance of control pertaining to public procurement will be a
priority, so as to ensure full consistency of the approaches and interpretations;
the Court of Accounts methodology used to establish the relevant risk areas, and
therefore contributing to the elaboration of the audit plan, will take into account, among
others, the risk factors indicated by governmental institutions, such as the National
Agency for Public Procurement (ANAP, performing ex-ante control as well monitoring and
supervision of public procurement), the National Integrity Agency and the Competition
Council;
in line with the existing responsibilities of the Court of Accounts2, the control is fullyfledged, from necessity to payment. It also integrates an assessment of the actual
functioning of the internal control system.
a system of dissuasive sanctions will be established, by law, differentiated by type of
irregularity.
The system of sanctions will primarily target the deficient contracting authorities as such
ranging from recommendations to fines,. Sanctions applied to contracting authorities shall
not trigger sanctioning of public procurement officers, unless penal infractions are at stake.
Individual procurement officers will remain responsible in accordance with the provisions of
the Penal Code in case of fraud or with the provisions of the Civil Code / Civil Servants law /
Labour Code (as relevant) in case of repetitive errors.
The new system of sanctions/administrative measures with sanctioning character shall be
defined by the national legislation transposing the PP Directives. The legislation subsequent
to this Strategy will contain special provisions:
2
Regulation approved by the Court of Accounts Plenum Decision no. 155/2014 published in the
Official Gazette no. 547 on 24/07/2014.
Page 33 of 47
-
to identify the exact cases that generate real (not presumed) prejudices that imply
subsequent financial recovery
the circumstances under which prejudices will be recovered and
rules for estimation of the prejudice.
Considering that the control sample methodology is different from that used in the case of exante control, it is acceptable and possible that in practice the same procedure might be
subject to ex-ante and ex-post audits. However, as a general rule, if a phase of a procedure
has been subject to ex-ante control with no irregularities being detected, should an
irregularity pertaining to that phase be detected by ex-post control / audits, the ex-post
control / audit body will inform the ex-ante control body, for remedial measures to be taken
as regards the efficiency of the ex-ante control. In case of disagreement, the coordination
mechanism defined under the pillar 2 of the present strategy will be used.
In the specific case of EU funded projects, ex-post controls / audits will be performed by the
Audit Authority whithin the Court of Accounts. The role of the Audit Authority is not only to
control contracting authorities but also to audit the functioning of the system for management
and control of EU funds and check the reliability of this system (including ANAP). In case the
Audit Authority or the managing authorities or certifying authority detect irregularities that
were not detected by the ex-ante control although they should have been identified, financial
corrections will still be applied on the EU contribution, Romania may decide how those
corrections are ultimately borne.
A specific case also requires some explanations, namely when an alleged irregularity is
identified either through whistleblowing or media or by a public authority, requiring a specific
verification. Such cases do not entail complaints submitted by bidders or interested parties
as part of the Remedy process, ex-ante control, Court of Accounts audits nor the verifications
performed as part of the system of management and control of EU funds. These cases will
be referred to the supervision body of ANAP that will perform the necessary verifications of
the situation. In case possible fraud is detected, ANAP will refer the results of the verification
to the competent authority. In the other cases, ANAP will inform the Court of Accounts.
Sanctions will be applied by the Court of Accounts, further to its audits
1.2 Impact and results indicators
The monitoring mechanism described under the chapter “Risks, governance and
performance monitoring” is directly applicable for the monitoring of indicators and expected
results described under this headline.
With regard to the procurement process regularity and quality verifications pillar, the following
indicators of impact are identified:
Page 34 of 47
Summary of proposed actions, lead and contributing institutions, completion timescales and planned impacts
Identified
issue/trigger
for the action
Proposed Action
Lead
Contributors
KPI
Deadline
Source of
Information
Planned Impacts
A: Develop internal control
Set up the specific SGG
requirements
concerning effective
management of the
public procurement
process
in
application
of
internal
control
standards
SGG, ANAP, Specific
December 2015
RCA,
key instructions
stakeholders issued by SGG
with the support
of ANAP
Guidance
on SGG
implementing
Support
internal control for
implementation public procurement,
of
internal tackling
internal
controls
actions
for
preventing conflict
of interests
ANAP, RCA, Team being set December 2015
key
up
stakeholders
Guidance,
June 2016
checklists
December 2015
developed
Define specific
requirements to
be followed by
all contracting
authorities
Guidance
published
web-based
guidelines
Procedures
developed
on
July 2016
Official
Gazette
ANAP
site
Introduction of the
principles
of
segregation
of
duties, “4 eyes
principle”
and
substantiation of
visas in the main
web phases
of
the
public
procurement
process
SGG
Effective guidance
is provided for
contracting
authorities set up
and
SGG internal
implementation of
procedures
internal
control
systems
Page 35 of 47
Identified
issue/trigger
for the action
Proposed Action
Lead
Revise MPF Order MPF
923/2014
on
preventive financial
control
Contributors
Key
stakeholders
KPI
Deadline
Publication
of March 2016
revised Order
Source of
Information
Planned Impacts
Official
Gazette
Reinforce integrity
rules
for
preventive
financial
controllers
Reinforce
independence
preventive
financial
controllers
Streamline the
role
of
preventive
financial
controllers
related to public
procurement
and MPF
Ensure adequate Develop
training
of implement training
for
Introduce
check
prior to launch of
procedure (based
of
substantiated
prior visa granted
by the economical,
technical and legal
department)
ANAP
Training
programme
March 2016
MPF
documents
Preventive
financial
Page 36 of 47
Identified
issue/trigger
for the action
Proposed Action
preventive
programmes
financial
guidance
controllers
in
the field of
public
procurement
Develop
implement
project
for
ADNR SA
ANAR
Implement pilot
project for large
contracting
authorities
and
Lead
Contributors
KPI
Deadline
developed
Controllers
trained
2016-2018
Guidance
published
March 2016
and CNADNR MPF, ANAP, Consultant hired January 2016
pilot
SGG, RCC
ANAR
CN
Improved
July 2016
and
internal control
systems adopted
Source of
Information
controllers
adequately fulfil
their
role
in
MPF reports
checking legality
and regularity of
Web
base the
public
guidelines
procurement
process
SEAP
Consultant
Internal control September 2016
systems
functioning
Consultant
ANAP
Lessons learnt
ANAP
October 2016
ISO 37001 (anti- 2017
Bribery)
implemented
Planned Impacts
Functional internal
control
system
enabling to ensure
regularity
and
quality of the
public
/
procurement
process for two
pilot contracting
authorities
CN ADNR,
ANAR
Page 37 of 47
Identified
issue/trigger
for the action
Define specific
requirements on
implementing
internal control
systems
by
larger
contracting
authorities
Proposed Action
Lead
Replicate
lessons ANAP,
learnt with CN MPF
ADNR and ANAR SGG
to
all
larger
contracting
authorities
Contributors
,
All
stakeholders
KPI
Deadline
Specific
December 2016
requirements on
implementing
internal control
systems by larger
contracting
authorities
developed
Source of
Information
Planned Impacts
ANAP, SGG
Functional internal
control
system
enabling to ensure
regularity
and
quality of the
public
procurement
process for large
contracting
authorities
Page 38 of 47
Identified
issue/trigger
for the action
Proposed Action
Lead
Contributors
KPI
Deadline
Source of
Information
Planned Impacts
ANAP
Ex-ante
control
system functional,
targeting
both
regularity
and
quality
B: Streamline ex-ante external control
Reform ex-ante Develop
of
a ANAP
control system
methodology
for
gradually
moving
from
systematic
controls to sample
based
Drafting of specific
checklists
Establish
the
structure, develop
procedures
and
define
responsibilities
in
view of ex-ante
control performance
Adoption
legal
of
the
basis
Key
stakeholders
Sampling
methodology
developed
November 2016
Checklists
developed
Procedures,
structure
and
responsibilities
for
ex-ante
control
performance
developed
Legal
adopted
basis January 2016
Official
Gazette
Page 39 of 47
Identified
issue/trigger
for the action
Proposed Action
Lead
Contributors
KPI
Deadline
Source of
Information
Planned Impacts
empowering ex-ante
control body to
enforce corrective
measures
Hire
technical ANAP
experts
as
employees of ANAP
Contract framework
technical assistance
for ex-ante control
New ex-ante system
functional
Key
stakeholders
Team
of August 2015 – ANAP
technical experts July 2016
established
January 2016
ANAP
July 2016
Page 40 of 47
Identified
issue/trigger
for the action
Proposed Action
Lead
Contributors
KPI
Deadline
Source of
Information
Planned Impacts
C: Improve and extend systems to prevent conflicts of interests
Art. 691 of GEO August 2015
34/2006
modified
Ensure
Repeal
rule
of ANAP
compliance with automatic exclusion
EU law on of the economic
conflicts
of operators
by
interest
Governmental
Ordinance
on
"cleaning the past" Modiy provisions of
article 69 of GEO
34/2006 on conflict
of
interests
(automatic
exclusion
of
bidders,
“single
share” situations and
4th degree relatives)
Government,
key
stakeholders
Official
Gazette
Avoiding conflicts
of
interest
primarily lies with
contracting
authorities.
Exclusion
of
economic operator
only if no other
solution is possible
Improve
and Make
Prevent ANI
extend systems system operational
to
prevent and compulsory
conflict
of
interest to all
ANAP, key Prevent system August
2015 ANI
stakeholders operational
(submitted to the
Official
Government)
Gazette
November 2015
(approved by the
Operational
systems to identify
and
prevent
conflicts of interest
Page 41 of 47
Identified
issue/trigger
for the action
Proposed Action
Lead
Contributors
KPI
Deadline
procurement
procedures
Planned Impacts
Parliament)
Compulsory use May 2016
of Prevent for all
procurement
procedures
Ensure
better
prevention
of
conflict
of
interest
Source of
Information
Provide guidance to SGG
contracting
authorities on how
to identify, detect
and
prevent
conflicts of interest
at
Contracting
Authority
level,
with a view to limit
the impact on the
market (defining the
concept of sensitive
key functions; the
approach to be
followed in respect
of holders of such
ANI, ANAP, Guidance
June 2016
key
developed
and
stakeholders made available to
contracting
authorities
Sensitive
functions
identified
ANAP
Web-based
guidelines
Improve practices
of
identification
and prevention
key
Risk
management
mechanisms
identified
Page 42 of 47
Identified
issue/trigger
for the action
Proposed Action
Lead
Contributors
KPI
Deadline
Source of
Information
Planned Impacts
functions involved
of in procurement
activities; associated
risks;
risk
management). The
guidance will be
correlated with the
instructions
on
internal
control
system.
Set
up
legal
requirement
for
issuing
document
detailed in section C
a) and imposing
contracting
authorities
to
remedy situations of
possible conflict of
interests
Page 43 of 47
Identified
issue/trigger
for the action
Proposed Action
Lead
Contributors
KPI
Deadline
Source of
Information
Planned Impacts
Enhance
the Court of
capacity of the Accounts
Court of Accounts
to tackle
public
procurement
Reinforced
capacity
January 2016
Court
Accounts
of Increase efficiency
of the audit in
public procurement
Ensure
adequate Court of
human
resources, Accounts
training and tools
Adequate
employed
allocated
staff January 2016
/
Court
Accounts
of
June 2016
Court
Accounts
of
Procedures and June 2016
tools updated
Court
Accounts
of
Training
programme
implementation
Court
Accounts
of
D: Streamline control of the Court of Accounts
Reinforce
the
role of the Court
of Accounts in
public
procurement
Training
programme
designed
Establish a system ANAP
of
dissuasive
sanctions, targeting
contracting
December 2016
Court
of Sanctions system January 2016
Accounts,
adopted
Audit
Official
Gazette
Page 44 of 47
Identified
issue/trigger
for the action
Take
into
account Audit
Authority
experience on
control of public
procurement
Proposed Action
Lead
authorities included
in
the
national
legislation
transposing
EU
Directives
Establish
a Court of
coordination
Accounts
mechanism between
the
Court
of
Accounts and the
Audit Authority
Contributors
KPI
Deadline
Source of
Information
Planned Impacts
Authority,
key
stakeholders
Audit
Authority,
ANAP, key
stakeholders
Cooperation
June 2016
mechanism
developed
and
functional
Court
Accounts
of Ensure
full
consistency
between
approaches
and
interpretations
Page 45 of 47
Page 46 of 47
1.3 List of Annexes corresponding to Pillar 3
Annex 1
Long list of problems, solutions and instruments in the public procurement
process (corresponding to annex 3 in RO version)
(The following annexes are working documents and are not designed for public disclosure)
Annex 2 Blueprint on internal control mechanisms in the field of public procurement
Annex 3 Presentation of the Prevent system
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