Editura Universitara Public Procurement. New Ideas, Old Practices

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ISBN: 978-606-28-1139-6

DOI: https://doi.org/10.5682/9786062811396

Edition: I

Pages: 222

Publisher: Universitară

Author: Ecaterina-Milica Dobrota, Dumitru-Viorel Parvu coordonatori

Publisher year: 2020

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The present paper, without being categorized as a collection of situations / practical problems, is based, however, on points of view expressed, sequentially, by specialists directly involved in the field of public procurement. From the diversity of the approached topics, results not only the intention of the authors to share their own experiences, but also the desire to propose solutions for the coherent application of the regulations in the field. All the points of view expressed are "validated" by the practical experience of those who present them and can also represent starting points in identifying or building optimal / optimized working solutions in situations that would require them, due to their specificity or novelty. From behind.

The coagulation of knowledge of this value (practice), through the analyzed work, can only represent a benefit for all those involved in the field of public procurement, accustomed, in general, to following the thread of recommendations resulting from guidelines specialty, and less with pragmatic working tools. The initiative of this compilation of the articles found in the paper is welcome, and bringing the authors together can not be considered only a simple opportunity to share knowledge, but even the possibility of building an information platform of great interest in the field. We wish success to all readers!
  • Public procurement. New ideas, old practices

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Ecaterina-Milica DOBROTA
Expert accountant, but also graduate of legal and naval engineering studies. With over 15 years of experience in the field of public procurement. Since 2017, advisor for resolving appeals in the field of public procurement. Associate teacher invited / trainer in supporting courses in postgraduate programs in the field of public procurement, conducted by the University "Lower Danube"; Babes University - Bolyai Cluj, "Danubius" University of Galati. Speaker / lecturer / trainer in numerous conferences / seminars / courses, organized by: Ministry of Internal Affairs / DGA, National Institute of Magistracy, - European Investment Bank (EIB), National Appeals Council, Freedom House Romania and the Fight Office Antifraud, MDRAP, Public Procurement Magazine, as well as organization of professional training companies (ANCIA Training SRL, ATC Training SRL, EAG SRL, Wolters Kluwer Romania etc). Participation, as a contributor, in: "Documentary Notebooks 3 - Digital Romania", Club Romania Publishing House; the book “Public procurement in Romania. Application and interpretation of the new European legislation ”, University Publishing House; The guide for practitioners in the field of public procurement, for the project "Fighting fraud in public procurement - An operational approach / Coordinator Freedom House Romania". Author of numerous articles in the field of public procurement. Member of the organizing committee of the scientific debates organized by the Society of Legal Sciences, since October 2017. Member of the editorial board of the Journal of Legal Notes and Studies. Vice President of the Association of Procurement Experts (AEXA), 2014-2017.

Dumitru-Viorel PARVU
Lawyer by profession. Position held: Advisor for resolving appeals in the field of public procurement, since 2006. Trainer / lecturer in training courses in the field of public procurement (certification of Public Procurement Expert), since 2007, organized by: National Institute of Administration; National Agency of Civil Servants, TAIEX - DG Enlargement - Workshop on public Procurement contract; private trainers (ATC Training SRL, INTRATEST SRL; EAG; CONTA PLUS; Union of Lawyers, etc.).
Lecturer in the postgraduate program of public procurement organized by the University "Dunarea de Jos" Galati - 2019. Author and co-author of specialized papers / articles. Articles in the Journal of Public Procurement Co-author of the Guide in Public Procurement, RAABE Publishing House, 2010 Contributor to the second edition of the Guide for practitioners in the field of procurement, within the European project "Legislation, economy, competition and administration. Development of a multidisciplinary approach in combating procurement fraud ”, Freedom House, 2016. Initiator and Project Manager, in the Project“ Improving management at the level of the National Appeals Resolution Council, related to the specific competencies related to the successful implementation of structural instruments ”.
Participant-speaker in events having as subject problems in the field: conferences, working groups, round tables, seminars.

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. He is also the Executive President of the Association of Procurement Experts AEXA, in which capacity he participates in improving the legislation in the field through dialogue with regulatory institutions but also in promoting professionalism and good practices in public procurement. In order to share practical experience and acquired knowledge, Florin Irimia is involved in organizing conferences, courses and seminars and participates as a lecturer in such events as well as in university professional training programs in the field of public procurement.

Silvius STANCIU
Vice-rector, university professor and doctoral supervisor at the “Dunarea de Jos” University of Galati, Engineering and Management in Agriculture and Rural Development. In the varied research activity he has published over 35 books / book chapters, over 300 papers in international / national journals indexed by ISI / ISI Proceedings or BDI and two international patents. As Director of the Technology Transfer Department within the University, he was actively involved in organizing postgraduate courses as close as possible to the needs and requirements of the market. Through the projects he initiated, he brought the academic environment closer to the business environment. He held the position of project manager in various projects, where he managed both compliance with all proposed indicators and successful implementation of public procurement and all requirements of national legislation.

Gabriela ALCEA (STANILA)
He began his career in the field of procurement regulationin 2008, within the National Authority for Regulation and Monitoring of Public Procurement (currently the National Agency for Public Procurement - ANAP), continuing with the procurement control activity, then embracing the practical part of the field, as coordinator of public procurement structures from the Ministry of Public Finance and the Ministry of European Funds. In 2016, he returned to ANAP, where he monitored the implementation of the National Strategy in the field of Public Procurement (SNAP), until the lifting of the horizontal ex-ante conditionality by the European Commission. Currently, he holds the position of director at the National Office for Centralized Procurement, an institution established following the implementation of SNAP measures. He has participated, as a trainer or lecturer in training courses, conferences and seminars on procurement and irregularities in public procurement.

Petre TANASE
Collaborating lawyer within CEPARU SI IRIMIA - Professional Civil Law Firm, since 2018. He was previously a legal advisor within Ceparu & Irimia Consulting SRL, in which capacity he provided legal advice regarding public procurement planning, organization and conduct of procedures. award of public procurement contracts both for contracting authorities and for economic operators. For 10 years he was a legal advisor within the Ministry of Internal Affairs, a position in which he participated in the procurement commissions, in the appeals settlement commissions and in the negotiation of draft contracts, in public procurement procedures and negotiations carried out by or through the institution. Mr. Tanase Petre's experience covers the entire activity related to the procurement field and extends over over 14 years, including the part of the representation before the courts of the contracting authorities, but also of the economic operators in the litigations regarding the public procurements. During all this time he wrote specialized articles, published in AEXA Magazine and Public Procurement Magazine (EAG Group). He also participated, as a guest teacher, in the postgraduate courses organized by the “Danubius” University of Galati. He participated, as a speaker, in conferences organized by AEXA, as well as by the Prahova Chamber of Commerce and Industry - Public Procurement Expert Course.


Specialists invited to this book

Dragos - Adrian BANTAS
Doctor in Information and National Security at the National Defense University "Carol I" and PhD student in Law at the University "Nicolae Titulescu" in Bucharest, with a thesis that addresses the decision-making process in the European Union from an evolutionary perspective. Also, he carries out didactic activity as an external collaborator of the University of Bucharest, within the Faculty of Law, in the discipline of European Union Law.

Ioana Aristita CIOBOTA
Lawyer, public procurement expert, working for almost 10 years within the Romanian construction company - VEGA 93 SRL Galati. Previously, as a First Degree Expert and Head of the Archive and Library Registry Service, he carried out, for approximately 3 years, a specialized contractual activity within the National Council for Solving Appeals. Graduate of the Postgraduate Program for Continuing Vocational Training and Development: Public Procurement Law, within the Faculty of Law of the “Danubius” University of Galati. Constant involvement in the dynamics of public procurement by participating in courses, seminars, conferences. Author of specialized articles published in the Journal of Public Procurement, Journal of the Prosecutor's Office attached to the High Court of Cassation and Justice: Doctrine and Jurisprudence (no.1 / 2019) Participation, as a guest, in the debate 221), organized by the Society of Legal Sciences (SSJ). Contributor to the Doing Business 2020 Report.

Octavian CONSTANTINESCU
Public procurement expert, public procurement trainer and investments financed from public funds. Previously, he was general director in the National Authority for Regulation and Monitoring of Public Procurement and head of service within the Ministry of Public Finance, advisor in the Ministry of National Economy, specialized inspector in the General Inspectorate for Construction Investments and design engineer in two design institutes. Mr. Constantinescu's experience of over 40 years covers all types of activities relevant to the field of procurement, through direct involvement, both as a bidder and as a regulator or contracting authority, but also as a provider of services ancillary to public procurement. Author of dozens of articles, but also promoter of the establishment of the Public Procurement Magazine. He participated as a teacher at the invitation of the Academy of Studies Economice Bucharest. He participated, as a lecturer / speaker in conferences, courses and seminars organized by the National Institute of Administration (INA), the Regional Center for Continuing Education for Local Public Administration - Bucharest, Bucharest Academy of Economic Studies, PHARE 2004 - Strengthening administrative capacity and managerial in order to efficiently implement the legislation in public procurement in Romania, as well as organized by professional training companies (TAK Education SRL, Formenerg SRL, TALIV Formare SRL, Transbia SRL, ATC SRL, Standard Consulting SRL etc).

Marius GAITAN
President and Senior Project Manager of S.C. EUROPROIECT ESTATE®SRL, a company specialized in Organizational Development, Technical Training and training in the construction branch. Construction engineer, with over 35 years of experience (technical design, execution, technical and judicial expertise, management and project management in construction), including the practical use of Project Management techniques in organizations, ensuring the correlation of techniques with organizational processes and operational activity by modeling technological processes in constructions. PMP® Certificate - Project Management Professional and PMI-PBA - Professional in Business Analysis - by Project Management Institute PMI® - USA, is a Member of PMI® - USA and Certified Trainer for Project Management courses. International professional activity: PMBOK Guide - Sixth Edition - Nominated in Appendix X2.4.2 - Final Exposure Draft Review (Standard & Guide Portion); The Standard for Program Management - Fourth Edition - Nominated in Appendix X2.3.2; The Standard for Portfolio Management - Fourth Edition - Nominated in Appendix X2.3.3; The PMI Guide to Business Analysis - First Edition, Nominated in Appendix X1.2.2; The Standard for Organizational Project Management - OPM, Nominated in Appendix X1.4; The Standard for Risk Management in Portfolios, Programs and Projects - Project Management Institute - PMI; nominated in Appendix X2.3.3; The Practice Standard for Scheduling - Third Edition - Project Management Institute - PMI; nominated in X2.2.2; Practice Standard for Work Breakdown Structures - Third Edition - Project Management Institute - PMI; nominated in Appendix X2; Practice Standard for Project Estimating - Project Management Institute - PMI- USA; nominated in Appendix X2.2.2 Practice Standard for Earned Value Management - Project Management Institute - PMI-USA; nominated in Appendix X2.3.2 PMBOK Guide - Sixth Edition

Jenica IOAN
Career civil servant. He worked in the local and central public administration starting from 1990 until 2018. During this period he coordinated budget, finance and accounting activities in the local public administration, and later, within ANRMAP / ANAP, starting with 2006 he coordinated the activity to monitor the national public procurement system, in order to identify practical solutions for its improvement and development. The experience gained was disseminated, as a lecturer / speaker / trainer in national and international conferences / courses / seminars. After retiring, in 2018, he chose to collaborate with public institutions exercising counseling activities in the public sectors in which he worked for over 30 years.

Riana Iren RADU
Associate Professor at the "Dunarea de Jos" University of Galati, Faculty of Economics and Business Administration, Department of Business Administration with over 20 years of experience. Author and co-author of numerous scientific articles, she has also published works in the field of public procurement. Being the holder of the courses "Public Procurement" and "Audit of public procurement and projects with European funding", studied in continuing education and master programs, it managed to instil in students the desire to study and deepen, in the work practical and sensible specific to this wonderful field. Involved in projects with non-reimbursable financing, it has successfully managed the financial aspects and the related public procurements.

Oana - Mihaela SALOMIA
Doctor in Law, within the "Nicolae Titulescu" University of Bucharest and graduate of the postgraduate specialization course "International Relations and European Integration", within the Romanian Diplomatic Institute. He carries out a prestigious professional activity in the field of European Union Law, having the quality of Adviser for European Affairs within the Ministry of Education and Research and TAIEX expert of the European Commission, responsible for providing technical assistance for the benefit of the Turkish Cypriot Community. He carries out didactic activity as a doctoral assistant professor, within the University of Bucharest (Faculties of Law and History), as a holder of courses and seminars in the discipline of Union Law Iropene. Participants in the postgraduate course in public procurement, held at the University "Lower Danube" Galati

Dorina CANTA
Graduate of the Faculty of Hydrotechnical Constructions within the “Gheorghe Asachi” Technical University of Iasi, by profession a graduate engineer specializing in hydrotechnical constructions, master in the field of Safety of hydrotechnical works. The professional activity in the field of public procurement started in 2007, within a commercial company with a construction profile at the Offering - Tracking Department of public procurement contracts. For 13 years he has been working in the field of constructions (specialization: hydrotechnical works, water supply, sewerage, sewage treatment plants, roads and bridges, civil constructions), in double capacity as projects. Participated in: professional training courses, after which he obtained auditor certificates in the field of quality, public procurement expert FIDIC 1999, public procurement expert national legislation; postgraduate training and continuing professional development course Public procurement; seminars on the “Large Infrastructure Operational Program (POIM) 2014-2020”.

Ioan Adrian DANCIU
Public procurement advisor within the City Hall of Tulnici Commune, Vrancea County, since 2016, where he gained a rich experience in the field, especially in awarding and implementing works contracts Graduate of the Faculty of Orthodox Theology. He specialized by graduating several courses in the field of public procurement, including the Postgraduate Public Procurement Program followed in the Department of Continuing Education of the University "Lower Danube" in Galati.

Andrei-Mirel FLOREA
PhD student at the "Dunarea de Jos" University of Galati. In 2019 he published two articles in BDI indexed journals in the field of public procurement. Starting with 2018, he holds the quality of expert accountant within the Body of Expert Accountants and Certified Accountants, the activity in which he needs the previously acquired knowledge in the field of public procurement. He worked for 4 years in an audit company where he deepened the secrets of public procurement. He controlled the observance of the procedures in public procurements, drew up awarding documents and participated, as a bidder, together with his collaborators, in over 150 public tenders, in the field of statutory audit and projects with non-reimbursable financing. In his activity, he has always supported the sustainable development of the business environment, by promoting fairness and consolidated knowledge, which determined him to take part in the “ANTREPRENORDOC” project, developed within the “Dunarea de Jos” University. from Galati.

Mihaela-Alina NICOLAU
Public procurement expert, with 15 years of experience in all types of activities relevant to the field of procurement. Experience in carrying out the procurement process specific to the sanitary field and the naval transport field. Provides specialized consultancy to contracting authorities for complex needs in projects with non-reimbursable financing (ROP), respectively to economic operators for the implementation of projects with non-reimbursable financing (POCU). The passion for this field was passed on through vocational training courses in the field of procurement. He participated as procurement manager or contracting expert in various projects with non-reimbursable financing on different financing programs (POSCCE, POIM, CEF) in both financing periods. Author of specialized articles, published in the Public Procurement Magazine (EAG Group). Full member of the Association of Procurement Experts (AEXA) since 2017.

Romeo-Costinel TORICA
Public procurement advisor, within the Public Procurement Service of the City Hall of Galati, where, together with his colleagues, he carried out procedures specific to the resort, thus contributing to the formation of a competent and ambitious team in professional terms. The first contact with the applicable legislation in the field of public procurement was in 2001, when he exercised his duties as an economist, in a national transport company. Starting with 2002 and until 2007, being appointed head of the organizational structure that had in its area of ​​activity the supply of one of the branches, he had to apply the will of the legislator in the field (at that time, GEO no. 60/2001 and, subsequently, GEO No. 34/2006). Between 2007–2011, it carried out specific activities to monitor the implementation of contracts, thus benefiting from the result of the awarding procedures, and since March 2015 it has carried out permanent public procurement procedures. Over time he participated in training programs, courses /training courses that contributed to the cementing of knowledge specific to the field of public procurement. He is a graduate of the postgraduate training and continuing professional development program Public Procurement.

Nedelea VARNISCHI
Technological engineer specializing in organic chemistry, holder of a patent, registered with the State Office for Inventions and Trademarks (OSIM). For 12 years she has been active in the field of public procurement, both in bidding (drafting qualification documents and technical proposals, execution technologies), as well as in the implementation of infrastructure projects with European funding, as project coordinator and project manager. Graduate of the postgraduate training and continuous professional development program "Public Procurement", holder of several certifications: Expert Accessing European Structural and Cohesion Funds, Public Procurement Expert - General and Special Conditions FIDIC, Internal Auditor for the ISO 9001 Quality Management System : 2000, Business Europe 2007, Strategic Management, Management and Business Administration. He participated in numerous projects financed from national funds but also in projects with private funds and private beneficiaries.

About the authors / 7

Foreword / 19

Public procurement - from clarity of principles to "fog" of regulation / 21
Gabriela Alcea (Stanila)

The professional capacity of the staff involved in the public procurement process - a determining factor of its efficiency / 27
Jenica Ioan

Sensitive qualification requirements. Their fulfillment by the tender participants / 36
Ecaterina-Milica Dobrota

Bidding and execution of the contract by the groups of economic operators / 57
Ioana Aristita Ciobota, Dumitru-Viorel Parvu

Confidence in public procurement / 80
Florin Irimia

Insolvency - reason for exclusion of economic operators participating in the procedures for awarding public procurement contracts / framework agreements / 85
Romeo-Costinel Torica

Clarification of the content of the offers, between the obligation and the “optional approach” / 107
Petre Tanase

The valences of the concept of “entities on whose technical and / or professional capacities the economic operator is based”, in the works contracts / 115
Nedelea Varnischi

Application of negotiation without prior publication, for reasons of extreme urgency / 124
Ecaterina-Milica Dobrota

Public procurement and project schedule / 135
Marius Gaitan

Modification of the public / sectoral procurement contract or framework agreement / 150
Octavian Constantinescu

Extension of the execution duration for works contracts / 160
Ioan Adrian Danciu

Reception of construction works in public procurement contracts - masterpiece of the transcendence of risks beyond legislative theories / 167
Dorina Canta

The parties and their obligations in the procedure for solving the administrative-jurisdictional appeals / 189
Mihaela-Alina Nicolau

Trends in public procurement. From risks to sustainability / 208
Andrei-Mirel Florea, Ecaterina-Milica Dobrota, Riana Iren Radu, Silvius Stanciu

General aspects regarding the competence of the European Union in the field of public procurement / 226
Oana-Mihaela Salomia, Dragos-Adrian Bantas

Public procurement is a complex issue (at the level of all member states of the European Union), these being part of the essential contributions, at national level, of implementing the principle of free movement of products, services and works, which is the basis of the Treaties on functioning of the European Union.

The "legislative package" in the field of public procurement does not directly provide practical solutions to any problem that may occur in the public procurement process, which makes it not always smooth; some regulations (especially those of secondary or tertiary level) being true thresholds for the process in the spirit of European (and national) regulation.

In this context, the appearance of such a work, which brings together among its covers several studies, focused on practical aspects, of major interest in public procurement, appears as a welcome initiative.

The coordinators of the paper, people with vast experience in public procurement, through their daily activity (being advisers for resolving appeals in the field of public procurement), share the most diverse interpretations of national legislation, put into practice by both contracting authorities and economic operators. bidders. Also, the didactic activities carried out by them and the participation in events dedicated to the field, such as conferences and colloquia, gave them access to the way in which some professional concepts were developed.

One such event, in which the two actively participated and which also represented the spark for the elaboration of this paper, was the postgraduate course "Public Procurement", organized by the increasingly active "Lower Danube" University of Galati.

Some of the graduates of this postgraduate course (2019) are authors of some of the studies combined by this paper, presenting ideas and practical experiences, of a diversity worthy of its (sub) title (New Ideas, Old Practices).

Just as the Romanian public procurement system has evolved, from a minimum of publicity / transparency, to a high-performance electronic system that allows daily information on public procurement procedures, so should the necessary legislative framework, and not just for the desideratum. bringing in line with the evolution of social life, with the technologies used by bidders and with other legal regulations in various fields, but with the incidence in the procedures for awarding public procurement contracts, but also to ensure a dynamic and easy development of the procurement process.

Although legal regulations, especially tertiary ones, abound, even at the risk of over-regulation, most of the views expressed by the authors of this study will remain current for many years, as they are not only solutions to issues of interest to public procurement practitioners. economic operators or contracting authorities, but also possible general level solutions, being based on the spirit of European regulation which requires, first of all, permanent and constant observance of the principles of non-discrimination, equal treatment, mutual recognition, transparency, proportionality and responsibility, established in European directives and in national legislation, but, unfortunately, often not applied.

The paper is all the more interesting and valuable as the authors of the articles are practitioners from various levels of the public procurement process, including contracting authorities with various responsibilities, economic operators in all categories of contracts, teachers and counselors for resolving appeals within the body. administrative-jurisdictional competent in the matter, and the coordinators have on their side not only the vast experience in the matter, but also a rich didactic activity, doubled by the publication of some specialized, theoretical or applied articles.

The initiative of the coordinators of the paper, to urge practitioners to express and publish such studies, which discuss specific issues of procurement legislation, in a practical approach, is welcome, because it is intended to help raise the level of debate and opinion. in the field, in order to obtain the long-awaited result of (as much) unitary practices as possible.

The scientific and practical value of the paper is all the greater as the authors approached topics that refer to all stages of the public procurement process, from issues related to eligibility to the modification of the public procurement contract, practitioners can find here solutions to problems on which meet them, pertinently legally argued solutions, with reference both to the legislation specific to public procurements, and to other normative acts with incidence in the field.

If this work will not remain singular, and the example of the University „Danube ofDown ”from Galati would have been followed by other university centers, which could take a step forward, introducing in the study programs, for the faculties of engineering, economics and law, public procurement courses, and authors and other specialists with extensive experience. will continue the path opened by this paper, it is obvious that we would witness a qualified intervention (of the scientific / university environment) in resolving the controversies generated by different interpretations of the relevant legislation, which would increase the efficiency of the system.
Lawyer, Constantin Costache

www.editurauniversitara.ro

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