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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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The Public Procurement Office also administers the “List of Suppliers that have Submitted Fraudulent
Information”.75 It provides the suppliers that have concealed information or have given fraudulent
information about the compliance with the qualification requirements or grounds for exclusion during
the tender procedures and the contracting authority can prove it by any legal means. First, the contracting
authority must conclude that the fraudulent information has been submitted and exclude the supplier
from the tender and if (a) the supplier does not dispute this in court; or (b) the court upholds the fact that
fraudulent information indeed has been submitted, the contracting authority may add the supplier to the
“List of Suppliers that have Submitted Fraudulent Information”, with a maximum delay of 10 days.
Suppliers remain on the list for 1 year and the presence on this list is a mandatory ground for exclusion
from the public procurement procedures.
Regarding the Romanian case, according to Article 34 of the Law no. 253/2013 on the execution of
criminal punishments, the conviction of a legal person is communicated by the Court to the register where
the legal person is enrolled: the Trade Register, the Register of Associations and Foundations etc.
According to the same law the institutions operating the respective registries have to make notes
regarding the registration of the legal person in the respective database. The Trade Register publishes
the notes regarding the accessory criminal sanction of prohibition to participate in public procurement.
Moreover, the Court will also communicate the sentence to the administrator of the electronic system
for public procurement (The Agency for the Digital Agenda of Romania, administrating the SEAP/SICAP
system)76. The Agency subsequently operates a ban on participating to procedures for the convicted legal
persons. This mechanism does not ensure 100% that public procurement contracts under the threshold
values used for procurements carried out using the electronic system are not concluded with convicted
legal persons. However, even under the threshold for direct procurement, the Romanian legal
framework77 provides a mechanism of orders using the electronic system for procurement, so that
contracting authorities can see the criminal records of contractors.
7.2. International implications
7.2.1. The maximum periods of exclusion regulated in different jurisdictions and implications of
differences
Article 57, paragraph 7 of the Directive 2014/24/UE provides that: “Where the period of exclusion has
not been set by final judgment, that period shall not exceed five years from the date of the conviction by
final judgment in the cases referred to in paragraph 1 [for mandatory exclusion grounds] and three years
from the date of the relevant event in the cases referred to in paragraph 4 [for optional exclusion
grounds].” The national legal frameworks transposing the regulations are generally providing the same
periods when grounds for exclusion are found for a bidder during a procurement procedure. However,
the criminal legal framework and other regulations, like the regulation of the ‘blacklists’ in Lithuania can
change dramatically the situation, as presented in the table below.
Table 2. Length of bans and the application of exclusion grounds in a comparative perspective
75 Available online, in Lithuanian last
accessed: 30/06/2017).
76 Law no. 253/2013 on the execution of criminal punishments, art. 38, para (1)
77 The Government Decision on rules for the implementation of Law no. 98/2016