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The preventive role of the judiciary in protecting the financial interest of the European Union.
A comparative analysis for improved performance
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Moreover, the same reasons for exclusion from public procurement procedures apply to economic
operators participating to sectoral procurements and procedures for concession contracts, as provided
by Law no. 99/2016 and Law no. 100/2016, but the criminal sanctions refer only to the prohibition of
participating in public procurement procedures, regulated by the Law 98/2016. From this point of view
public procurement procedures are more vigorously protected by the criminal law against contractors
with a criminal record, while the sectoral procurements and works and services contracts are only
protected by administrative means against the bidders with criminal records.
Expert consultation has revealed
that, while the existence of the criminal sanction of prohibition of
participating to tenders is a guarantee of exclusion of unfair participants, experts mentioned that
generally, the Contracting Authorities are only asking for a statutory declaration from bidders stating they
are in none of the exclusion cases. While using an statutory declaration is simplifying the bid, which is
much appreciated, the majority opinion is that Contracting Authorities would need a collaborative
information data basis on the execution of previous contracts by bidders, in order to check if the bidder
has not been found guilty of serious professional misconduct in previous contracts.
Furthermore, while finding a case of exclusion, despite the statutory declaration, leads to the exclusion
of the bidder, or the contractor (if the contract has been signed), the perjury is rarely investigated and
punished, so there is no discouraging effect of an exclusion if caught with the lie.
Once the Prevent tool is developed and used in public procurement, there is a hope the conflict of interest
situations will be spotted and sanctioned with exclusion, as until 2017 the Court of Accounts and Audit
Authority audits and controls and investigations from other institutions have proven that the statutory
declaration of some bidders stating they are not in a conflict of interests have been false.
Moreover, experts notice there is a lack of transparency on the side of Contracting Authorities regarding
the consultations or involvement of potential bidders in developing tender documents, as this would lead
to the exclusion of the respective bidder.
5.3.
Grounds for exemption from exclusions: the self-cleaning measures
Self-cleaning measures for bidders to “save” themselves from exclusion are provided in all the four
analysed national cases.
First, true to the Directive 2014/24, derogation from the mandatory exclusion grounds can be made in all
the analysed countries on an exceptional basis, for overriding reasons relating to the public interest, such
as public health or protection of the environment.
Second, according to the Directive, exemptions are regulated in all four countries related to payment of
taxes and social security contributions, if the bidders pay their debts, or the debt is under a fixed
threshold, and if other justifications (lack of information) or administrative decisions (if the economic
operator benefits of financial rescheduling or other facilities from the tax authorities) are provided by the
bidders.
Third, an economic operator that is bankrupt or is the subject of insolvency or winding-up proceedings,
or where its assets are being administered by a liquidator or by the court, or where it is in an arrangement
with creditors, or where its business activities are suspended or it is in any analogous situation arising
from a similar procedure under national laws, can be accepted by contracting authorities if the latter can