Policy OLAF BT

The preventive role of the judiciary in protecting the financial interest of the European Union.

A comparative analysis for improved performance

has breached its obligation of indicating in the tender that they have taken into account the

relevant obligations in the environment, social and labour relations fields. This can be proved by

any appropriate means by the contracting authority;

is in a procedure of insolvency or under winding-up proceedings, under judicial supervision of

activities or in the situation of cessation of business;

has proven serious professional misconduct. This can be proved by any appropriate means by the

contracting authority;

has concluded agreements with other economic operators aimed at distorting competition within

or in connection to the procedure of public procurement;

is in a situation of conflict of interests within or in connection with the procedure in question and

this situation cannot be effectively remedied by other less stringent measures;

has participated in a previous preparation of the award procedure, leading to a distortion of

competition;

has proven deficient performance in a previous public contracts implementation;

has been guilty of forgery in official statements as to the content of the information submitted

upon the request of the contracting authority for the purpose of verifying the absence of grounds

for exclusion or the fulfilment of the qualification and selection criteria, has failed to submit such

information or is unable to provide the required supporting documents;

attempted to illegally influence the decision-making process of the contracting authority, to

obtain confidential information which could give him unjustified advantages in the award

procedure, or has provided, through negligence, misinformation which may have a significant

influence on the decisions of the contracting authority regarding the exclusion from the award

procedure of that economic operator, its selection or the award of the public procurement.

Therefore, the Romanian legislature decided that the grounds for exclusion where the Member States

had flexibility will be mandatory for the Romanian contracting authorities.

Only the situation when the economic operator concluded agreements with other economic operators

aimed at distorting competition within or in connection to the procedure of public procurement is

further defined by the law based on examples that will provide the contracting authority with sufficient

information to proceed to debarment.

According to article 169 of Law 98/2016

an economic operator can be excluded from the award

procedure at any time, for reasons of action or inaction related to the motives for exclusion committed

before or during the procedure.

While the sanction of exclusion from public procurement procedures (the legal provisions refers literally

to: prohibition to participate in public procurement procedures for a period from 1 to 3 years) provided

under the Criminal Codes applies to legal persons for any participation to the procurement procedures,

the exclusion reasons provided by Law no. 98/2016 apply to each and every procedure, depending on the

thoroughness of the Contracting Authority in verifying all the exclusion grounds for each of the bidders.

See also art.182 of Law 99/2016 on sectorial procurement, art.83 of Law 100/2016 on works concessions and

service concessions.