Editura Universitara Achizitiile publice in Romania. Aplicarea si interpretarea noii legislatii europene

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ISBN: 978-606-28-0636-1

DOI: 10.5682/9786062806361

Publisher year: 2017

Pages: 266

Publisher: Universitară

Author: Daniel-Mihail Sandru, Irina Alexe, Raul-Felix Hodos

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In 2014, the competent authorities of the European Union regulated the vast field of public procurement through a legislative package comprising three new directives (2014/23 / EU - on the award of concession contracts, 2014/24 / EU - on public procurement and 2014 / 25 / EU - on acquisitions made by entities operating in the water, energy, transport and postal services sectors) and established that the remedies directives remain applicable, and Member States had two years to transpose them into internal European standards.

Thus, after the application, for a year, by the competent authorities in Romania, of the new legislation in the field of public procurement, it was necessary to analyze the quality of the transposition norms, but also the application of these norms, the problems in the content were identified. regulations, as well as those that appeared during the application of the procedures and the solutions for their remedy were proposed.

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  • Achizitiile publice in Romania. Aplicarea si interpretarea noii legislatii europene

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Irina ALEXE
Associate scientific researcher at the Institute of Legal Research „Acad. Andrei Radulescu ”of the Romanian Academy. She is a graduate of the Faculty of Law within the "Alexandru Ioan Cuza" Police Academy and a doctor of law from the Faculty of Law of the University of Bucharest. He worked for almost 20 years in the Ministry of Internal Affairs and is currently a reserve officer. He is an expert in the elaboration and support, within the governmental and parliamentary procedures, of the drafts of normative acts aiming at the field of internal affairs, the functioning of the central and local administration, respectively the coordination of the prefects' activity. Author of volumes and articles in the field, his areas of interest concern administrative law, constitutional law and European law.

Radu BALANEAN
Doctor of Sociology; president, training expert, psychologist, psychotherapist and researcher in socio-human sciences at the Institute of Training, Studies and Research
- ITSC Tirgu-Mures. He founded and coordinates: National Federation for Vocational Education and Training, Institute of Contextual Psychological Technologies Cluj-Napoca, Romanian Psychosexology Association, Regional Board of Psychologists with the Right of Free Practice in the Central Region, Federation of SME Employers in the Central Region, IM Board Mures County. First Vice-President of the National Council of Small and Medium Private Enterprises in Romania. Regional Leader of the Body of Professionals in Lobby and Advocacy and Coalition52 from the Central Region. Member of the Scientific Council of GNOSIS Sibiu Magazine and Vice President of the Scientific Council of the Administration of Protected Areas Sighisoara, Tarnava Mare and Hartibaciului Plateau. Research in socio-human sciences, psychology, psychotherapy, sexology, socio-psycho-sexology, environmental protection, evaluation of providers and training programs, quality systems in education, organizational management and human resources.

Mircea Valentin CARLAN
PhD lecturer at Atheneum University of Bucharest, with extensive experience in central and local public administration both in the field of public procurement and in the management of European funds. Member of numerous entities in the associative environment, of which the most important is the Association of Procurement Experts (AEXA), where he also holds the status of member of the Scientific Committee.

Ecaterina-Milica DOBROTA
Author of numerous specialized articles, he has an experience of about ten years in public procurement; trainer; Expert accountant. Member of the Body of Expert Accountants in Romania (CECAR). Vice President of the Association of Procurement Experts (AEXA). Expertise: consulting in the field of public procurement; formulating points of view / opinions, as a public procurement expert, in litigations pending before the courts; filing appeals to the CNSC; verification of public procurement procedures, financed from European and national funds; lecturer in seminars / conferences dedicated to the field of public procurement.

Florentina DRAGAN
Associate teacher at the Master of Public Procurement - Faculty of Law of the University of Bucharest and advisor for resolving appeals in the field of public procurement within the National Council for Solving Appeals since 2008, full president since 2009 and member of the CNSC college in year 2012 until July 2016. He has a professional activity in the legal field for over 16 years and in the university field for over 3 years. He has been a doctor of law since 2005 and a trainer in adult training programs since 2009. Author of studies and articles published in specialized journals, he has numerous participations in courses, symposia, conferences, seminars, workshops / working groups and internships in the field of public procurement.

Laura-Alexandra FARCA
Lawyer with over 10 years of experience both in the consulting activity and in representing clients before the courts and administrative-jurisdictional, experience gained in prestigious law firms. He specialized in providing legal assistance to Romanian and foreign companies in the field of public procurement (including representation procedures before the National Dispute Resolution Council), real estate and company law. His experience also covers labor law, personal data protection and environmental law. One of his priorities was to share the experience gained by publishing articles in the field of public procurement. She graduated from the Faculty of Law of the University of Bucharest in 2004 and has been a member of the Bucharest Bar since 2005. She graduated from the Master of Business Law of the Faculty of Law, University of Bucharest in 2005 and the Master of Public Procurement, Concessions and PPP from the same faculty completed in 2014. Starting with 2017, he is a PhD student in public procurement at the Faculty of Law of Babes-Bolyai University.

Raul-Felix HODOS
Lawyer, insolvency practitioner, mediator, university lecturer at the “Petru Maior” University of Tirgu Mures, Sal-Fin conciliator (A.S.F.), arbitrator on the list of the C.C.I. Mures; doctor of law from the “Babes-Bolyai” University of Cluj-Napoca with the thesis “Electronic payment”; areas of interest: commercial law, insolvency, public procurement, financial services.

Florin IRIMIA
Lawyer specialized in the field of public procurement, especially in resolving disputes aimed at awarding and carrying out contracts financed from public funds. Executive President of the Association of Procurement Experts AEXA, in which he participates in improving legislation in the field through dialogue with regulatory institutions but also in promoting professionalism and good practice in public procurement by organizing conferences, courses and seminars and by publishing of articles and other specialized materials. In order to share with students the practical experience and in-depth knowledge acquired during the comparative analysis of the system of remedies and remedies in France and Romania, he manages the Public Procurement Litigation course within the Master in Public Procurement organized by "Petru Maior" University of Targu. Mures.

Cristina M. KASSAI
Degree in law and economic studies, with 15 years of activity in legal consulting and business management. Continuing his studies and professional training in the USA, within THE AMERICAS GROUP Financial Services, USA, having the quality of European representative for immigration policies through the EB-5 investment program of the American state. Diplomatic experience by relating both to private enterprises and to government institutions, government leaders and other officials. Promotes the national interest in scientific research, within the projects undertaken as a doctoral student of the Institute of Legal Research "Acad. Andrei Radulescu ”of the Romanian Academy.

Florin LUDUSAN
University assistant at the "Petru Maior" University of Tirgu Mures, Faculty of Economic, Legal and Administrative Sciences. He is a graduate of the Faculty of Law at the "Dimitrie Cantemir" Christian University in Cluj Napoca and a doctor of law at the Faculty of Law at the "Titu Maiorescu" University in Bucharest. He carried out a postdoctoral research internship at the same faculty. Lawyer in the Mures Bar, having an experience of over 12 years in the field of civil, corporate and insolvency law. Author of the monograph "Criminal clause in the new Civil Code", as well as several publications in legal journals.


Daniela MICU
Insolvency practitioner, graduate of the specializations "Public Administration" and "Law" from the "Petru Maior" University of Tirgu-Mures, with 8 years of experience in the legal field. Areas of interest: insolvency, administrative law, commercial law.

Raluca NECHIMIS
Lawyer holding the individual law firm "Raluca Nechimis" and associate in EMEA Conferences. He has more than 15 years of experience in the field of business law, specializing in commercial contracts and public procurement. Organizes conferences with the participation of international experts and representatives of the Romanian authorities, such as conferences in January and April 2017 in the field of public procurement in which they participated as lecturers, among others: Prof. Sue Arrowsmith, Prof. Peter Trepte, Dr. Aris Georgopoulos, Virginia and Roger Bickerstaff, or the September 2017 conference attended by Bart van Buitenen (DPO) and Luis Neto Galvao (Council of Europe expert) as lecturers. He is a member of the Romanian Association of European Law and Affairs. Publishes in the Journal of Public Procurement.

Nicolae-Dragos PLOESTEANU
Associate Professor PhD at "Petru Maior" University, Targu Mures and director - Department of Law and Public Administration. He founded and coordinated the Ius Iuventutis law circle, specializing in the field of international treaties. Member of ASIL - American Society of International Law and of the Romanian Association of Law and European Affairs - ARDAE.

Manole Ciprian POPA
He has a long practical and academic experience in the field of society groups, author of several works on this topic, the most important being the monograph "Society groups", published by C.H. Beck from Bucharest in 2011. Lecturer doctor at the Faculty of Law of the University of Bucharest and member of the Romanian Association of Law and European Affairs - ARDAE.

Bogdan PUSCAS
President of the National Agency for Public Procurement, currently PhD student of the Bucharest Academy of Economic Sciences, specialization Accounting-Economic Sciences , has an experience in public administration dating back to 2004. Full lecturer for the courses of Public Procurement Expert, of Using SEAP for private economic operators and contracting authorities. Directly involved in all procurement procedures carried out in 16 of the European funded projects. He can be contacted at the e-mail address: puscas.bogdan@gmail.com.

Angelica ROSU
Associate Professor PhD at the "Danubius" University of Galati; arbitrator at the International Commercial Arbitration Court attached to the Romanian Chamber of Commerce and Industry; mediator; lawyer - specialized in business law, with an experience of over 17 years in the field; member of the European Association of Banking and Financial Law; member of the editorial board of the journal "Acta Universitatis Danubius. Legal ”; area of ​​interest: arbitration.

Daniel-Mihail SANDRU
University professor at the Christian University "Dimitrie Cantemir" and the University of Bucharest. He founded and coordinates the Center for European Law Studies of the Institute for Legal Research "Acad. Andrei Radulescu ”of the Romanian Academy. Ad hoc judge at the European Court of Human Rights and arbitrator at the International Commercial Arbitration Court attached to the Romanian Chamber of Commerce and Industry. President of the Society of Legal Sciences and of the Romanian Association of European Law and Affairs. Editor-in-Chief of the Romanian Journal of European Law (Wolters Kluwer).

Content

About the authors / 9

Introductory note on this volume / 15

  •  
  • Irina Alexe, Reform of European legislation in the field of public procurement and its recent transposition in Romania / 18
  • Bogdan Puscas, News brought by the methodological norms for the application of the new legislative package / 44
  • Raul Felix Hodos, Daniela Micu, Subjects of the public procurement contract. About discrimination and its consequences in the public-private relationship / 50
  • Florentina Dragan, Is prior notification an obstacle or not in carrying out the award procedures? / 70
  • Daniel-Mihail Sandru, Commercial Arbitration in Public Procurement. Experiences of the International Commercial Arbitration Court attached to the Romanian Chamber of Commerce and Industry / 80
  • Florin Irimia, Critical look at the legislation on remedies and remedies in the field of awarding public procurement contracts / 95
  • Ecaterina-Milica Dobrota, Subcontractor: proposal in the offer and involvement in the contract / 108
  • Manole Ciprian Popa, Critical remarks on the ambiguity of the regulation of groups of companies in public procurement legislation / 119
  • Angelica Rosu, Exclusion from the procedure for awarding public procurement contracts of the candidate / bidder convicted / investigated for committing a crime / 149
  • Nicolae-Dragos Ploesteanu, Good practices and bad practices in the procedures / specific / for / contracting financing addressed to small and medium enterprises / 163
  • Raluca Nechimis, The impact of the regulations regarding the processing of personal data - including the new Regulation no. 679 of April 27, 2016 on the protection of individuals with regard to the processing of personal data (“Regulation”) - on public procurement procedures / 179
  • Florin Ludusan, Criminal clause in the public procurement contract / 186
  • Laura-Alexandra Farca, Observations regarding the new regulations regarding the modification of the public procurement contract / 203
  • Cristina M. Kassai, Practical initiatives in ecological public procurement carried out in the European Union / 221
  • Radu Balanean, Vice and traps in the quality of public procurement results. A perception of the SME and NGO segment in the Central Region / 230
  • Mircea Valentin Carlan, Risks that may occur during the public procurement procedure and measures to prevent them / 250

Introductory note on this volume


"Petru Maior" University of Tirgu-Mures, in partnership with CSDE - Center for European Law Studies of the Institute for Legal Research "Acad. Andrei Radulescu ”of the Romanian Academy, SOROCAPP - Romanian Research Society for Public and Private Affairs and AEXA - Association of Procurement Experts, organized the National Conference on Public Procurement entitled“ One year after the entry into force of the new public procurement legislation ”.

Held in Targu Mures on April 26, 2017, during events dedicated to celebrating the 10 years since Romania is an integral part of the European Union, the conference brought together professionals, professors, researchers, magistrates, lawyers, specialists in the field of public procurement regulation , as well as in the field of application of these regulations.

The main purpose of the conference was that, during the academic debates between representatives of all actors involved in public procurement (contracting authorities, economic operators participating in the procedures for awarding public procurement contracts, consultants, regulatory institutions, monitoring and verification of the procedure), to highlight the effects of the legislative novelties in the matter, but also the problems that appeared in the application and interpretation - administrative and jurisdictional - of the normative acts adopted in May 2016 in the field of public procurement, as a result of Romanian law of the relevant directives, adopted in 2014 by the European Parliament and the Council.

This volume contains nine of the papers discussed at the conference as well as seven other articles that were not presented at that event. The date on which the information contained in the articles was updated, respectively on which the sites mentioned in them were consulted is August 28, 2017, except for some elements included in two of the articles, which were updated on the date of publication of the volume. The authors assume full responsibility for the opinions, citations and authenticity of the materials presented, both the publisher and the coordinators having no responsibility in this regard.

The importance of debating the topic and, implicitly, the importance of this new and current volume results from the fact that, in 2014, the competent authorities of the European Union regulated the vast field of public procurement through a legislative package comprising three new directives (2014/23 / EU - on the award of concession contracts, 2014/24 / EU - on public procurement and 2014/25 / EU - on procurement by entities operating in the water, energy, transport and postal services sectors) and established that the remedies directives remain applicable, and Member States had two years to transpose European rules into national law. Thus, after the application, for a year, by the competent authorities in Romania, of the new legislation in the field of public procurement, it was necessary to analyze the quality of transposition norms but also the application of these norms, problems were identified in the content of regulations. as well as those that appeared during the application of the procedures and the solutions for their remedy were proposed.

The high quality of the scientific approach whose result was materialized in volume is ensured on the one hand by the excellent professional training of the authors, theorists or practitioners of law, professionals from the central or local public administration or from the employer environment, and on the other hand by pertinent analysis through which they treat the approached topics, all being aware that only by using legal instruments in the field of public procurement can be achieved an open, transparent and fair competition and an attractive and sustainable economic environment including Romania and other Member States European Union, and public funds can be used in a fair way and not illegally distort free competition.

The volume contains both articles with a pronounced theoretical, descriptive character, as well as articles with a pronounced practical, applicative character, as well as, for the most part, articles that necessarily and usefully combine the two components, all bringing the necessary clarifications including by resorting to recent doctrine. , to the national jurisprudence or to the jurisprudence in the matter of the European Court of Human Rights or of the Court of Justice of the European Union, precisely for the most correct understanding and application of the vast and at the same time very technical field of public procurement.

Convinced that this volume, like the proceedings of the conference which formed the basis of its elaboration, will be useful to both theorists and r and, equally to those who are preparing to become professionals in the field of public procurement, we recommend this work to all.


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