Ref.

Ares(2013)2826823 - 05/08/2013
 Ref. Ares(2012)774012 - 27/06/2012

EUROPEAN COMMISSION
DIRECTORATE-GENERAL
REGIONAL POLICY
Audit
The Director

Brussels,
REGIO J2/BS/id/ D(2012) 175473

Subject: Audit of the functioning of the management and control systems as

required by articles 60 (a) and 60 (b) of (EC) Regulation 1083/2006
and articles 13(2) to 13(4) off (EC) Regulation 1828/2006
Audit of Regional Development Operational Programme
CCI 2007RO161PO001

Ref.: Mission No. 2011/RO/REGIO/J2/956/1 (to be used in following

correspondence)

Your Excellency

I am writing to inform you that the Directorate General Regional Policy has analysed the
reply received from the national authorities to the related draft audit report of the audit
mission referred to above, namely your replies dated 11 October (ARES 1076539), 24
October (ARES 1129227), 31 October 2011 and 22 February 2012 (ARES 212310).

Please find enclosed the final audit report setting out the Commission's final position on
all the remaining open findings and related actions and recommendations.

The irregular expenditure detected during the audit and the proposed financial corrections
is presented in Annex: II.
I request that you treat the enclosed audit report as confidential until the follow up
procedure set below has been brought to a final conclusion. If the whole or part of the
report is transmitted to persons concerned by the audit to enable them to provide
comments, please ensure that the information set out in this paragraph accompanies the
transmission.

His Excellency Mr Mihnea loan Motoc

Ambassador Extraordinary and Plenipotentiary Permanent Representative
Permanent Representation of Romania to the EU
Rue Montoyer / Montoyerstraat 12
lOOOBruxelles/Brussel

Commission europenne, B-1049 Bruxelles / Europese Commissie, -1049 Brussel - Belgium. Telephone: (32-2) 299 11 11.
http://ec.europa.eu/comm/regionalj3olicy/
Office: 1
G:\13-AUDIT MISSIONS 2007-13 PROGR PERIOD\EPM Bridging the Assurance Gap\RO\2011 RO REGIO J2 956 1 Regional
OP\REPORTS\Fmal reporRRO follow up letter EN.doc
Theattentionofthenationalauthoritiesisdrawntothefactthatthepresentlettercanlead
tofinancialcorrectionsdecidedbytheCommissionunderArticle99ofRegulation(EC)
No1083/2006.Toavoidanymisunderstanding,thelegalprocedureissetoutinAnnex
tothepresentletter.

In accordance with this procedure, the national authorities may either inform the
Commissionoftheirformalacceptanceofthefinancialcorrectionsproposed,orobjectto
theobservationsmadebytheComthission,inwhichcasetheywillbeinvitedtoahearing
by the Commission at which both sides shall make efforts to reach an agreement
regardingtheobservationsandtheconclusionstobedrawnfromthem.

Thenationalauthorities arerequestedtoinformtheCommissionontheimplementation
ofactions andrecommendations set out inthe final auditreport withintwo months of
receipt of the national language version of this final audit report by the Permanent
Representation.
GiventhatanysuspensionorreductionoftheCommunityassistancetotheprojectsmay
adverselyaffectfinalbeneficiaries,Ithereforeformallyrequestthatyouensurethatthese
personsaredulyinformed andplacedinapositiontoeffectively makeknowntheirviews
on the information on which the proposed decision is based. I would be grateful to
receiveanyinformationonthismatter.

Furthermore,youarerequestedtoconfirmthatfindingswhichhaveafinancialimpacton
theEUbudget exceeding 10.000havebeenreported to OLAFintheIMS system for
reportingirregularitiesandtoprovidetherelevantreferences.

Yours faithfully
Enclosures: Annex I - Commission's observations, conclusions and recommendations
Annex - Summary of irregular expenditure and proposed financial
corrections
Annex - Procedure for suspension of payments and application of
financial corrections

Copy: Mr Friptu
Managing Authority
Operational Programme Regional
17 Apolodor Street
Bucharest
Romania

Mr Popa
Romanian Court of Accounts
Audit Authority
6 Stavropoleos Street, Sector 3
Bucharest
Romania

Ms Levy (DG Employment, Social Affairs and Inclusion, Unit ffi)

Mr Johnston (DG Maritime Affairs and Fisheries, Unit Fl)
Mr. Popens (DG Regional Policy, Convergence, Competitiveness and Cross-
border programmes)
Mr Seyler (DG Regional Policy, Directorate I)
Ms Martinez Sarasola (DG Regional Policy, Unit II)
Mr Lopez Lledo, DG Regional policy. Unit A3
Mr Grant, DG Regional Policy, Unit B3
Mr Sbert, DG Regional Policy, Unit Jl
Mr Wiedner (DG Internal Market and Services, Unit C3)
Mr Cipriani - European Court of Auditors
OLAF audit reports
 Ref. Ares(2012)774012 - 27/06/2012

EUROPEAN COMMISSION
DIRECTORATE-GENERAL
REGIONAL POLICY
Audit
Control and audit

ANNEX I COMMISSION'S OBSERVATIONS, CONCLUSIONS AND

RECOMMENDATIONS

Analysis of the measures taken under the action plan for the remedial of systemic
weaknesses in relation to key requirement 4: Adequate management verifications (in
particular publicprocurementverifications)

1. Significant deficiencies identified:

The audit found significant irregularities in relation to public procurement process for the
contractsawardedundertheprojectsselectedinthesample,namely:
i) useofdiscriminatorytechnicalcriteriaforselectionstageofrestrictedprocedures;
ii) unjustified useofacceleratedprocedures;
iii)incorrect use of Article 122 of national Ordinance 34/2006 (additional works
contracted as similar works through negotiated procedure without publishing a
contractnotice).
Onthebasisoftheprojects basedfindingsandduetothefactthattheirregularitieswerenot
detected bythe ManagingAuthority, ANRMAP and UCVAP (asnational bodies for public
procurement verifications), nor by Certifying Authority, the deficiency was considered
systemic.Therefore, remedial measureswere included inthe actionplantobe implemented
bytheMS(seeTable2totheauditreport).

2.Memberstatereply:
Romanian authorities replied on 11October 2011 (ARES 1076539).Additional information
was received on conflict of interest by latter ARES 1129227/24.10.2011. On 31 October
2011, Romanian authorities submitted the audit reports issued byAA onthe compliance of
UCVAP and ANRMAP. By letter of 22 February 2012 (ARES 212310), the Romanian
authoritiesacceptedthefinancialcorrectionsproposedbytheCommissionunderfindingsno.
2,3,4and5.

Furthertothemeetingswhichtookplaceon 16/17and28Novemberbetween Commission's

servicesandRomanianauthorities(MA,AAandACIS),further commitmentsweretakenby
RomanianauthoritiesbyletterAres(2011)130461405/12/2011.

Tables 1and2belowprovidemoredetailed information ontheinformation submittedbythe

Romanianauthorities.

3.Commission analysis:

\

i) Effective functionine of the manasement and control system with regard to public
procurementverifications
a)TheCommissionacknowledgesthatthetasksandresponsibilities ofallbodiesinvolvedin
public procurement have been better defined and that the accountability of ANRMAP and
UCVAP has been formally reinforced. Following the assessment of the cooperation
agreements concluded between MA, ANRMAP and UCVAP on 9 September 2011, the
CommissiondrawattentionontheinvolvementofANRMAPintheexpostverifications,the
Romanian authorities accepted the recommendation and concluded Addendum no. 1to the
agreementon24November2011.

b) Commission takes note that ANRMAP issued, as requested, new guidelines for the
interpretation of public procurement law. Nonetheless, by letter Ares(2011)1252930
23/11/2011,Commissiondrawattentionon:

Nonretroactivity ofthenewguidelinesfortheinterpretationofthepublicprocurementlaw;

Proportionalityontheapplicationofthegeneralprinciplesofpublicprocurement.

c)Byletterof31October2011,theAAsubmittedtwoauditreportsontheassessmentofthe
conformity oftheexantesystemfortheverification ofpublicprocurement.Eventhough,the
reports confirm the compliance ofUCVAP andANRMAP,the effective functioning ofthe
management and control system inrespecttopublicprocurement verifications couldnotbe
tested.

Recommendation:

AAshouldconfirmbasedarepresentative sampleoftransactions,theeffective functioning of

the new set up for management verifications, notably in respect to public procurement
verification.

if) Corrective measures to be taken in respect to sienifcant deficiencies identified -

rescreenins of past expenditure by MA
Aspartoftheactionplan,themanagingauthoritywasrequestedtoverify allworkscontracts
underthepriorityaxis2.1toscreenfortheexistenceofdiscriminatoryselectioncriteriainthe
tender notice, unjustified use of accelerated procedure and additional works contracted as
similarworks.

MA for Regional Development OPhas screened all works contracts under axis 2.1,found
irregularities and proposed corrections in amount EUR 20.5 million for in 29 contracts,
representing2.7%ofthecontractedamount.

Followingthereviewoftheabovementionedactionbasedonasampleofoperationsalready
verified by MA, the Commission was not satisfied with regard to the quantification ofthe
financial impact ofthe errors found by the Romanian authorities.In addition,the proposed
correctionsdidnottakeintoaccountnotablycasesofunjustified useofacceleratedprocedure
andshorteneddeadlines.Moreover,managingauthoritydidnotcarryoutspecific verification
withregardtoconflictofinterests.

Followingtheauditcarriedoutfortheassessmentoftheverifications performed byMA,the

audit authority identified irregularities based on which financial corrections were proposed
following the audit work carried out within the context of rescreening all public procurement
contracts at national level, amount to 71.85 million Euro for the Regional OP out of which
62.60 million Euro are related to Axis 2.1. The proportion of corrections proposed for Axis
2.1 is 10.60% of the value of the contracts signed.

The results of the AA's audit work confirm the assessment of the Commission on the
verifications carried out on a sample of contracts checked by MA. The Commission
considered that MA did not identify all errors and underestimated the level of necessary
corrections to be made. In particular, MA did not identify all cases of shortened deadlines and
unjustified use of accelerated procedure.

Recommendation:

Audit work should be carried out by AA in order to followup the effective correction
process.

) Additional actions requested

a) Fraud prevention and detection /conflict of interest verifications

In order to implement the legislative framework on the prevention and detection of cases of
conflict of interests, necessary tools should be made available for the managing authorities to
carry out consistent verifications. The procedural framework should be aligned accordingly
and management authorities should include checks on conflicts of interests. In cases of
suspicion of fraud or conflict of interest, the expenditure under the related operation should be
decertified until the finalisation of the investigation.

Recommendation :

As concerns the suspicion of fraud and conflict of interest cases, Commission recommends:

awareness campaigns, and

training initiative on the basis of a detailed vademecum (legislative frame, institutions'

roles, tools, code of conduct and transparency initiative) at two levels: (a) managing
authorities and intermediate bodies and (b) final beneficiaries with a clear timetable, to be
implemented regularly by MA;

inclusion of the conflict of interest issue within the management verifications;

development of specific tools to allow for the verification on conflict of interest;

expenditure incurred under contracts for which suspicions of fraud arise should not be
certified up to the end of the investigations carried out by the appropriate bodies.

b) Other structural weaknesses

The assessment of the information submitted by the Romanian authorities revealed certain
structural problems of a systemic nature which might have impact for all operational
programmes. Following the review of the information submitted by MA, it was noticed that
decisions on establishing irregularities were often directly linked to the recovery process. This
stateoffacts leadtoinconsistent approaches asdifferent decisionshadbeentakeninrespect
tosimilarfindings.

Inaddition,Commissioncouldnotidentify therelevantArticleofOrdmance 66/2011which

regulatesthecasesofdisagreementsbetweenmanagingauthoritiesandauditauthority.

Recommendation:

Decisions on establishing irregularities should be decoupled from the recovery process.

Managing authorities (management verifications) should decide on corrections for
expenditure to be certified to the Commission regardless of the subsequent recovery
process atnational level. Inthe case oftheRegional operationalprogramme itwas also
noticed that the corrective measures were not applied consistently for similar type of
findings.

The legal framework shouldprovide for the corrective mechanism tobe implemented in
casesofdisagreementsbetweenmanagingauthoritiesandauditauthority.

Asconcernstherecommendationsmentionedunderpointsi) iv),further commitmentshave

already been taken by the national authorities through Ares(2011)1304614 05/12/2011
following themeetingheldbetween Commission's servicesandtheRomanian authoritieson
28November.
Based ontheresults ofthe actionsplan already implemented in 2011by MA for Regional
Development OPandbased onthe further commitments takenbytheRomanian authorities
through the above mentioned letter, Commission services decided for the Regional
OperationalProgrammeonaprovisional correctionof 10%tobeappliedtothepastandnew
expenditure bytheRomanian authorities andtobewithheld from thepayment claimsupto
the end of the contradictory procedure1. By Commission's letter of 1of March 2012 (Ref.
Ares(2012)242234 01/03/2012),Romanianauthoritieswereremindedtheprovisional status
ofthewithholdingmeasureswhicharetobeimposedbyendofJune2012.

1
SeeDGRegioletterAres(2011)139904222/12/2011.
 Ref. Ares(2012)774012 - 27/06/2012

ANNEX I I SUMMARY O F IRREGULAR EXPENDITURE AND PROPOSED FINANCIAL CORRECTIONS

Amount on irregular Amount of financial

Finding
^^!^? |^||11||1;||
!1<
|BiMialtOTjretion|?;
assistance1 :;

m mm
EpMacting ^ : p M Buz
:.'rol^ct>cdd:::rSmS1475:i:l;^

Cp]^rting:Autliority:M^^T

Contract;JVor., Discriminatorytechnicaleligibility 47.724.025 86.5% 25% 10.320.320,41

contract criteria
Unjustified acceleratedprocedure 47.724.025 86.5% 10% 4.085.176,54
basedonANRMAPOrder51/2009

GontractmgAuthority:UATTeleorman
Projectcode:SMIS1099
Contract:Work Discriminatorytechnicaleligibility 89.916.434,41 86.5% 25% 19.444.428,94
contract' criteria

ContractingAuthority:UATIlfov
Project code4272
5. Workscontract Unjustified acceleratedprocedure 173.667.721,41lei 86.5% 25% 37.164.892,38
basedonANRMAPOrder51/2009
 ^^^

^
International(works
for9projects)
Workscontract Ineligibleexpenditurerelatedto 173.667.721,41lei 86.5% Irregular 3,627,416.08 (in
additionalworks. expenditurenot relationtoproject
expressedin SMIScode4272)
percentage

Framework Noncompliance!withthecontractual Paymentsrelatedthe 86.5% Irregular 138.278,42 (difference

agreement for provisions : subsequent expenditurenot betweentheamounts
supervisingservices: contractsshouldbe expressedin requestedunderthe
madeatthe percentage subsequentcontracts
percentageinitially andamountspaidby
tendered(0.35%of theMAcalculated
thevalueof basedon0.35%upto
(coverssupervision supervisedworks) June2012)
for33worksites)

Note:Whenseveraldeficienciesarefoundinthesamesystem,theflatratesofcorrectionarenotcumulated,themostseriousdeficiency beingtakenasan
indicationoftheriskspresentedbythecontrolsystemasawhole.(Guidelinesontheprinciples,criteriaandindicativescalestobeappliedbyCommission
departmentsindeterminingfinancialcorrectionsunderArticle39(3)ofRegulation(EC)No1260/1999.
 Ref.Ares(2012)77401227/06/2012

ANNEX PROCEDUREFORSUSPENSIONOFPAYMENTSANDAPPLICATIONOF
FINANCIAL CORRECTIONS

(1) UnderArticle92(1)ofCouncilRegulation(EC)No1083/2006,theCommission
shallsuspendtheinterimpaymentsinquestion.
(2) UnderArticle99(1)ofCouncilRegulation(EC)No1083/2006,theCommission
maymakefinancialcorrectionsbycancellingallorpartoftheCommunitycontribution
toanoperationalprogrammewhere,aftercarryingoutthenecessaryexamination,it
concludesthat:
(a)thereisaseriousdeficiencyinthemanagementandcontrolsystemofthe
programmewhichhasputatrisktheCommunitycontributionalreadypaidtothe
programme;
(b)expenditurecontainedinacertifiedstatementofexpenditureisirregularand
hasnotbeencorrectedbytheMemberStatepriortotheopeningofthecorrection
procedureunderthisparagraph;
(c)aMemberStatehasnotcompliedwithitsobligationsunderArticle98priorto
theopeningofthecorrectionprocedureunderthisparagraph.
(3) UnderArticle 100(1)ofCouncilRegulation(EC)No 1083/2006,beforetakinga
decisiononafinancialcorrection,theCommissionshallopentheprocedurebyinforming
theMemberStateofitsprovisionalconclusionsandrequestingtheMemberStateto
submititscommentswithintwomonths.
WheretheCommissionproposesafinancialcorrectiononthebasisofextrapolationorat
aflatrate,theMemberStateshallbegiventheopportunitytodemonstrate,throughan
examinationofthedocumentationconcerned,thattheactualextentofirregularitywas
lessthantheCommission'sassessment.InagreementwiththeCommission,theMember
Statemaylimitthescopeofthisexaminationtoanappropriateproportionorsampleof
thedocumentationconcerned.Exceptindulyjustified cases,thetimeallowedforthis
examinationshallnotexceedafurtherperiodoftwomonthsafterthetwomonthperiod
referredtoinpoint(3).
(4) UnderArticle 100(2)ofCouncilRegulation(EC)No1083/2006,theCommission
shalltakeaccountofanyevidencesuppliedbytheMemberStatewithinthetimelimits
mentionedinpoint(3).
(5) UnderArticle100(3)ofCouncilRegulation(EC)No1083/2006,wherethe
MemberStatedoesnotaccepttheprovisionalconclusionsoftheCommission,the
MemberStateshallbeinvitedtoahearingbytheCommission,inwhichbothsidesin
cooperationbasedonthepartnershipshallmakeeffortstoreachanagreementconcerning
theobservationsandtheconclusionstobedrawnfromthem.
(6) UnderArticle100(4)ofCouncilRegulation(EC)No1083/2006,incaseofan
agreement,theMemberStatemayreusetheCommunityfundsconcernedinconformity
withthesecondsubparagraphofArticle98(2).
(7) UnderArticle100(5)ofCouncilRegulation(EC)No1083/2006,intheabsence
ofagreement,theCommissionshalltake1adecisiononthefinancialcorrectionwithinsix
monthsofthedateofthehearingtakingaccountofallinformationandobservations
submittedduringthecourseoftheprocedure.Ifnohearingtakesplace,thesixmonth
periodshallbegintoruntwomonthsafterthedateoftheletterofinvitationsentbythe
Commission.
 LISTOFACRONYMS

AA: AuditAuthority

ANRMAP: AuthorityforRegulatingandMonitoringPublicProcurement

ATU: AdministrativeTerritorialUnit

CA: ContractingAuthority

CNSC: NationalCouncilforSolvingComplaints

DGREGIO: DirectorateGeneralforRegionalPolicy

EPM: EnquiryPlanningMemorandum

ERDF: EuropeanRegionalDevelopmentFund

MA: ManagingAuthority

UCVAP: UnitforCoordinationandVerification ofPublicProcurement

 TABLEI

FINDINGS AND ACTIONS TO BE TAKEN/ RECOMMENDATIONS

PROJECT AUDITS (ON-THE-SPOT VISITS)

! SIPRIRYI
iiilfflffiBilii?
Iiffllii3li

KEY REQUIREMENT 4: ADEQUATE MANAGEMENT VERIFICATIONS ( PARTICULAR PUBLIC PROCUREMENT)

Deficiencies identified

SiVIIS 1475 - Road rehabilitation within the project "Modernization of infrastructure for access to tourist areas in Buzau County" (57.89kni)

; Gon tract: ; servie ; eroraet

;;^lue!pfthe;^tract:;25e;r^
^^^^
1. Irregularity related to The guidelines a) MA a) 60 Low Recommendation not accepted Commission's
the evaluation process (COCOF 07/0037/(J3- days services take note
The lowest offer EN) on financial Checks were carried out in accordance with oftheMS's reply.
(approx. 33.750 EUR) corrections due 'to Government Emergency Order No 66/2011
was excluded based on noncompliance with and Findings Note No 68459/15 September This finding is
inconsistency in the public procurement 2011 was prepared considered closed.
tender documents rales stipulates 2%,
submitted by the bidder. 5% or 10% According to the Findings Note, the control
The number of reports to corrections unit found from the documents subject to

'' For approximation reasons, the EU exchange rate of May 2011 was used. (lEuro=4.081 Lei)
N 0 " ElNING ACTIONTOBETAKEN/ RESPNSIBE DEADLINE PIUOMTY :: ACCEPTANCE : ^THE ;MEMBER ; STATE / GOMMENTS FROM FINAL POSITION OF THE
teGOMMNDATION BODY COMMISSION
(DAYS) :MEDIUM/:
.''Low:: <:'

be provided by the audit (depending on the checks, which are kept at the registered office
company was 7+2 at seriousness of the of the Ministry of Regional Development and
page 28 and 2 at page issue) for incorrect Tourism (MRDT), as well as from those sent
29. This seems to be a application of certain by the beneficiary in the period of the checks,
formal error occurred ancillary elements of that no irregularities were identified in the
while drafting the offer. the public development of the public procurement
According to Article 78 procurement procedure in connection with the assessment
in Government Decision procedure. process because the tender which was rejected
925/2006, the evaluation as noncompliant did not meet the
Taking into account requirements in the tender documents and in
committee has the
that the evaluation the clarification posted in SEAP on 22 June
obligation to request
committee, although 2009 regarding the number of audit reports to
necessary clarifications
obliged, did not be prepared under the contract, as follows:
related to formal aspects
request further "Question: How many reports must be
in order to have the
information and issued?
confirmation on the
information provided in bearing in mind that
the contract was Response: 7. One report in each of the
the tender document.
under the threshold of 6th. 10th. 14th. 18th. 22 and 26"' month,
UCVAP and CNSC the Directive, we as well as one final report."
should have taken into propose 2% financial
account the provisions of correction to be The control unit considers that, according to
Article 78 in the applied to the value the findings, it is clear that 7 audit reports had
Ordinance 34/2006 of the contract (Point to be prepared under the contract.
12 in guidance for
when issuing their
financial corrections The rejected tenderer undertook in its technical
opinion.
due to public offer to prepare either 9 audit reports or only
procurement). two audit reports, according to the action plan
committed to in its offer.

Therefore, in accordance with the

provisions of. Article 81 of Government
Decision No 925/2006, which provides for the
obligation of the evaluation committee to reject
unacceptable and noncompliant tenders, the
Contracting Authority proceeded correctly
 :

1111|11
Hliiiii
lilfflSilll
when it rejected the tender of
^*" as noncompliant because it
failed to comply with the provisions in the
tender documents, more specifically as regards
the number of audit reports requested.

We send you included with the response

all the substantiating documents which led to
the justification of the conclusions in Findings
Note No 68456/15 September 2011

Considering the above, the suspicion of

irregularity is not confirmed, and the control
unit did not identify irregularities in the
procurement process relating to the audit
services contract, as referred to in Government
Emergency Order No 66/2011 on the
prevention, identification and sanctioning of
irregularities occurred in connection with the
procurement and use of European funds and/or
their related national public funds.

I!||||l!|i|lllffl

2. Discriminatory Action a) MA; 60 days High Initial position expressed by MS: The Commission's
technical selection ANRMAP services take note
Taking into account Recommendation not accepted
criteria of the information
N FINDING
Applicable legislation
Article 23, paragraph 8
oftheDirective 2004/18,
transposed in Article 38
of ordinance 34/2006,
states: "Unless justified
by the subject matter of financial correction is
the contract, technical
specifications shall not
refer to a specific make
or source. or a period of the checks:
particular process, or to Horizontal action
trade marks, patents,
types or aspecific origin See
or production with the Table 2
effect of favouring or
eliminating certain
undertakings or certain
products. Such reference
shall be permitted on an
exceptional basis, where
asufficiently precise and
intelligible description
of the subjectmatter of
the contract pursuant to
paragraphs 3 and 4 is
not possible such
reference shall be
accompanied by the
words 'or equivalent'."
Facts:
First, the contracting
authority established a
detailed list of
A C T I O N T / REStONSBLE D E A D P P PRIORITY lsliPOSITIOPiOFTHE
RECOMMENDATIONS BDY ;
M E M B E R T A T E i.:' ::": CMJVnSSIOrVZ:
(DAYS)
ow
the financial Checks were carried out in accordance with provided by the
implications, and the Gove^iment Qrder No 79/2003 and Findings MS.
fact the Commission's Report No 61474/01 August 20y..._was
services consider the prepared as a result thereof. According to this Commission's
procedure as a report, the control unit found the following services close the
"quasidirect", 100% from the documents subject to checks, which finding.
were kept at the registered office of MRDT
proposed to be and which were sent by the beneficiary to be In respect to the use
applied to the value included with the financing application, the of discriminatory
of the contract. applications for reimbursement, and in the criteria, a 25%
financial correction
shall be applied to
As regards the use of the qualification the value of the
ana selection criteria:
action plan.
contract (point 7 of
The invitation to tend^^as r sent for the guidelines on
publication in SEAP and OJEU the financial
The Evaluation Committee considered as corrections).
unacceptable the tenders which were
submitted with a large number of Due to suspicions
documents missing, as required in the of fraud,
tender documents. expenditure under
As regards the list of in situ cold recycling this contract should
equipments, they can be found in the not be declared
technical solution established by the until the
designer, according to which the whole finalisation of the
technological process is carried out on investigation. If
site, i.e. in situ, on the site of the road, by fraud is proven by
a set of equipments: investigations, a
a water tank financial correction
a hot bitumen tank of 100% of the
a binder spreader value of the
a plant for the mixture of components contract shall be
> a recycler applied.
compacting cylinders.
Among these, the recycler has the main
 BDYi:

1!
equipment to be in the function because it cuts the deteriorated road,
possession or at the kneads it and mixes it with the added binder
disposal of the and then it lays it back. The recycler is not a
candidates without process in itself, it is a piece of equipment
permitting the use of required to be included in the list of
equivalent equipment for equipments according to the technical solution,
the selection stage of the which was to be applied on the road sections
restricted public where the designer deemed it necessary.
procedure used.
No particular equipment make was
For example, in situ cold
required for such a technological process, but
recycling equipment.
merely a set of equipments which, according to
The contracting
their specificity, contribute to the cold "in situ"
authority could not
stabilization of the mixing materials according
justify through the
to the technical solution established by the
technical design the need
designer, i
to use this specific
process.
With j regard to the decision of the
Following the selection
stage only one company E^t lodged an objection in which it stated
out of six compUed with that I the Contracting Authority used
all technical eligibility technical criteria deemed unjustified
criteria. As a obstacles to the participation in the public
consequence, the procurement procedure
financial offer was With I Letter No 17014/3225C8/9 July
submitted only by one 2010 the National Council for the
company in the second SettlementofObjectionscommunicatedto
stage of the procurement theContractingAuthorityitsDecisionNo
process. 3465^8/3225 of7July2010,whereby it
rejected the objection lodged
The contracting
!orderedfurther proceedings
authority's set up of
considering that the latter did not
detailed technical
provide proof that it owned the
eligibility criteria lead to
machines, installations and technical
unjustified obstacles to
equipments concerned. Moreover, some
the opening up of public
10
) :tmmGi :Acpn^;TQ;BE:TpN/;;: IteSPNSBLE 1);|: PORIV ^ G E P T ^ G E : B Y T H E ; M | M S R S T A T E / GOMMENTS FROM FINAL POSITION OF THE
TSOO " :;:;/:;1: GMMissroN
fiAYS)

procurement to rented machines and equipments were

competition. specified, but the tenderer failed to
submit the lease contracts concluded in
Therefore, the basic
this respect.
public procurement
principles of equal Thus, the control unit has found that there are
treatment and non no sufficient grounds to substantiate a
discrimination and the breach from the part of the beneficiary in
one of sound financial the provisions of Article 178(2) of
management, are not Government Emergency Order No 34/2006
complied with. and Article 8 of Government Decision No
925/2006.
Secodlv. ANRMAP
and MA in its With regard to the conflict of interests
supervisory role) did not The control unit carried out checks,
identify this specific including at the National Trade Registry
situation during their Office (NTRO), which sent the summary
verification of the companies involved (from all
viewpoints, namely the associates, the
stock capital, shareholding, secondary
offices etc) for ^ ^ and
(^;,:1 which does
not reveal any direct connection with any
of the persons involved in the
implementation of the project from
Teleorman County Council.
Thus, considering the provisions of
Section 8 Rules to prevent the conflict
of interests in Government Emergency
Order No 34/2006, no elements have been
identified to ascertain the existence of a
conflict of interests under the procurement
process for a works contract.
In conclusion, as a result of the checks on
the aspects which were notified, the control
unit did not find any irregularities, as

11
SM & EiNIqsifKrqpffiBffi;
Booti

defined in Government Order No 79/2003

on the control and recovery of Community
funds, and of the related co-financing funds
unduly used, as approved as amended by
Law No 529/2003, as subsequently amended
and supplemented.

We send you included with the response all the

substantiating documents which led to the
justification of the conclusions in Report No
61474/1 August 2011.

Updated position expressed byM^jby lette

Ares(2012)212310:

Recommendation partially accepted:

According to the COCOF note no. 07/0037/03

Guideline to determine financial corrections, a
financial correction of 25% shall be applied
due to applying too restrictive criteria.

Unjustified accelerated Action a) Action a) 60 days High Initial position expressed by MS: Commission's
procedure based on andb) services take note
Recommendation not accepted
ANRMAP Order 1) When verifying on the reply
51/2009 the contract noticje. MA provided by the
A decision was issued with regard to the
ANRMAP should MS.
Applicable legislation Action c) application of the provisions of Government
assess the
Emergency Order No 66/2011, and the Commission's
In accordance with the compliance with the
MA; Findings Note which was subject to the services close the
provisions of the Article legal provisions
ANRMAP objection was concluded, the objection was finding.
38 paragraph 3 of the when reduced
admitted and the debt security was voided.
EU Directive no. deadlines aire
2004/18/EC on the foreseen by the According to the
Report No CA 61474/16 August 2011 COCOF Note no
coordination of contracting
procedures for the 07/0037/03
According to the documents subject to checks.

12
' FINDING
award of public works
contracts, public supply
contracts and public
service contracts and
Article 83 of Emergency
Ordinance 34/2006:
"Inthe case of restricted
procedures, negotiated
procedures with
publication of a contract
notice referred to in
Article 30 and the
competitive dialogue:
(a) the minimum time
limit for receipt of
requests to participate
shall be37days from the potential bidders.
date on which the
contract notice issent." Horizontal action
As concerns reduce
See action
deadlines, paragraph 8
Table2
states:
"In the case of restricted
procedures and
negotiated procedures
with publication of a
A C T I O N TQBJE T I E N / ^SPNSIBt; V D E U N E ; PRORIY ACEFrANBYTHEMEMBEEtSTATE/COMIVIENTSFROM FlNAPOSrriONOFTHE
^COMMENDATIONS B O D Y :'.;TtffiMilBEkTATE ": :: COMMlSSON ":
.tmiUM/i
ow::":
authorities. which are kept at the registered office of Guideline to
MRDT andwhich were sentby the beneficiary determine financial
Action b) to be included with the financing application, corrections, a
the applications for payment, and inthe period financial correction
According to the of the checks, the control unit has noted the of 10% shall be
COCOF Note no following: :r >^, applied to the value
07/0037/03 of the contract due
^ , Teleorman Colinty _tCounclb";,as. a
Guideline to to unjustified use of
Contracting Authority, requested"that the
determine financial reduced deadlines
public procurement procedure be amended',
corrections, a for submitting
pointing outthat itwas entitledto speed up the
financial correction offers by potential
procurement process in accordance with the
of 10% shall be bidders. 3
provisions of Order No 51/2009 of the
applied to the value
National Regulatory Authority Monitoring
ofthe contract due to
Public Procurement (NRAMPP) on the
unjustified use of
speeding up of the restricted and negotiated
reduced deadlines for
procedures with the prior publication of an
submitting offers by
invitation totender. The control unit
establishedthe following:
the contract notice was published in 23
March2010;
plan.
the invitation to tender was 'sent for
publication on 15April 2010;
the deadline for the submission of
applications was3May 2010;

Whenseveraldeficiencies arefound inthesamesystem,theflat rates ofcorrectionnotcumulated,themost serious deficiency beingtakenas an

indicationoftheriskspresentedbythecontrolsystemasawhole.(Guidelinesontheprinciples,criteriaandindicativescalestobeapplied by Commission
departments indetermining financial corrections underArticle39(3)ofRegulation (EC)No 1260/1999.

13
:::? &!: iKEsiNspii; Pmoti;
:COMrssro

contract notice referred the contract was signed on 30 July 2010.

to in Article 30, where
urgency renders Therefore, the period for the submission of
impracticable the time tenders by candidates was 17 days (from 16
limits laid down in this April 2010 to 3 May 2010, exclusive).
Article, contracting
authorities may fix: Pursuant to the recommendation of the
Commission included in the
(a) a time limit for the
Preliminary Audit Report No
receipt of requests to
2011/RO/EGIO/J2/956/1 for the Regional
participate which may
Operational Programme CCI
not be less than 15 days
from the date on which 2007RO161PO001, it was deemed that the
the contract notice was time limit for the submission of tenders was
sent, or less than 10 unjustifiably below the minimum time limit
days if the notice was provided for by Article 38 of Directive
sent by electronic 2004/18/EC and by the application of the
means, in accordance accelerated procedure, competition was not
with the format and sufficiently ensured.
procedure for sending
notices indicated in Following the analysis of the tenders submitted
point 3 of Annex VIII," by the other candidates as well, it was found
that a large number of documents were
Facts missing, as follows:
As regards the above the joint venture
mentioned contract:
Prior information __ __- ^
notice was published
Zamsti failed to submit many of the
on 23.03.2010.
documents requested, part of such
Contract notice was documents not being related to the
sent for pubUcation technical equipment requested, such as
on 15.04.2010. and missing educational certificates, degrees,
nonlegalised documents etc.
Deadline for
submission of offers to the absence of many documents in

14
' .ENDNG':! TO BE'TAICEN/:; SESPONIBLE pADLD PRIORITY ^ C E P T A N E J B Y M E M B E R S T A T E / & F R O M : lFlNLPOSITIONOFTHE
i McOmiENiUTlOS : ; IBDY ! :; .THE MEMBER STATE \ -, ^ tMMISiSIN
(DAYS)
::
: ::'0\::;

was 3.05.2010. connection with the technical equipment

requested, educational certificates and
Contract signed on
degrees were missing, as well as non
30.07.2010.
legalised documents, references,
Therefore, the time limit recommendations for the staff involved,
for bidders to submit thefinancial economicsituationetc.
offers was18days.
except for the documents related to the
First,havinginmind:
technical equipment, documents were
a) the reduction of the found to be missing as regards the
deadline is foreseen only economic and financial situation, as well
when normal timelimits as the tax certificate which was not valid
are impracticable. onthe date ofthemeeting for the opening
(Article 38 paragraph 8 offenders, thebankreference letterfor the
of the EU Directive no. financial supportforthework, educational
2004/18/EC), and degrees,attestations etc.
Considering the above, as well as the
b) "when fixing the time
fact that the beneficiary was entitled to speed
limits for the receipt of
up the procurement procedure in accordance
tenders and requests to
with the provisions of Order No 51/2009 of
participate, contracting
NRAMPP, the exceptional nature of the
authorities shall take
situation which entailed the shortening of the
account in particular of
period concerning the time limit for the
the complexity of the
submission of applications, which must be at
contract and the time
least 37days, isnotdeemed justified.
required for drawing up
tenders, without
prejudice to the Accordingtothe rale of COCOF 07/0037/03
minimum time limits set RO, the final version on 29 November 2007
by this Article." (Article of EC, Guidelines for determining financial
38 paragraph 1 of the corrections to be made to expenditure co
EU Directive no. financed from the Structural Funds or the
2004/18/EC), Cohesion Fund for noncompliance with the
rules on public procurement, in conjunction
it is our opinion that the with the provisions in the criterion 1.6in the
deadline for the Annex to Government Emergency Order No

15
.
iOrElfi;
OBMiioTY

submission of offers is 66/2011, afinancialcorrection of10%shall
unjustifiably below the be applied to the value of the works
minimum period contract.
foreseenbyArticle38of
Directive 2004/18/EC Teleorman County Council, acting as the
and by applying the beneficiary, lodged an objection registered
accelerated procedure with the Ministry of Regional Development
market competition was and Tourism under No 66682/7 September
notsufficiently ensured. 2011withregardtotheFindingsNoteNoCA
61479/16 August 2011 concerning
Secondly, ANRMAP
irregularities and the appUcation of financial
and MA in its
corrections in connection with the project of
supervisory role)didnot
the SMIS Code No 1124 "Rehabilitationof
identify this specific
DJ 506, CerveniaVitanestiBabaita, km
situation during their
17+400 58+000". By this objection, the
verification
former requested the cancellation of the
Also, according to the financialcorrection of 10% applied to the
activity report of valueoftheworkscontract.
UCVAP, it has been
verified and concluded ByitsOrderNo2422/15September 2011,the
that the Contracting Mmister of Regional Development and
Authority had respected Tourism appointed the Committee for the
the relevant legal settlement of the objection lodged by
deadlines. MA did not TeleormanCountyCouncil.
spot the issue in its
supervisoryrole. its analysis, the Gommittee has
Basedontheauditwork, foundthat:
we have identified that
unjustified shortened Directive '2004/18/EC on public
deadlines constitute a procurement allows the application of
recurrent irregularity in accelerated procedures when they are
Romania for which the justified by urgent needs. Even if the
Commission has not speeding up of the public procurement
received evidence that procedure can support in a justified
adequate measures are manner the actions ofMemberStates in

16
\' '^,BE;TAKEA:: ItespriSiBLE PRIOKTIY 1^ THE MEMBER STATE /CENTS EROM FIN AL POSITION OF THE
:
:tocqMMEATNSi'. CBOY : T H E M E M B E R STATE : :
; GOMMISSION

':
being implemented. their consolidation of their internal
economy by the swift execution of major
public investment projects, it is achieved
if the conditions for the application of a
competitive procedure have been
ensured.
As a Contracting Authority, the
beneficiary requested the modification of the
public procurement procedure, pointing out
that it was entitled to speed up the procurement
procedure in accordance with the provisions of
Order No 51/2009 of NRAMPP on the
speeding up of restricted and negotiated
procedures with the prior publication of an
invitation to tender, in conjunction with Article
83 of Government Emergency Order No
34/2006 on public procurement, as
subsequently amended and supplemented.

The Committee noted that the beneficiary

justified the exceptional nature of that
particular situation in accordance with the
legal rales in force.

Moreover, the reason for the speeding up of

the restricted procedure was also invoked in
the invitation to tender which was checked and
approved by NRAMPP and in which the
following was noted: Accelerated restricted
procedure Exceptional nature of the current
economic situation and the provisions of Order
No 51/2009 of the President of NRAMPP, as
well as of the deadlines for the implementation
of projects.

17
 :
RHlSDATiONS BOB GSnissroNi:

Considering the provisions of Article 83 of

GovernmentEmergency OrderNo34/2006,in
conjunction withtheprovisionsofArticle 1of
Order No 51/2009 of NRAMPP, the
Committeehasfoundthefollowing:

the contract notice was published on 23

March2010;
the invitation to tender was sent for
publicationinOJEUon15April2010;
the time limit for the submission of
applicationswas3May2010.

By way of consequence, the provisions of

Article83(2)ofGovernmentEmergencyOrder
No 34/2006 and of Article 1 of Order No
51/2009 of NRAMPP were complied with,
namely Teleorman County Council invoked
theexceptionalnature ofthecurrent economic
situation as areason for the urgent switching
fromthe open procedure, which was initially
foreseen in the timetable of public
procurement, to the accelerated restricted
procedure. Thus, it ensured compliance with
the minimum period of 15 days foreseen
between the date of transmission of the
invitation totender and the time limit for the
submission of applications, being consistent
withtheconditionssetout.
Thecomplainantsubmittedatable(includedas
an annex), concerning the submission of the
qualification documents requested in the
Tender data sheet, whereby itprovedthatthe
documents could have been obtained within

18
 FNDNG
ECODVIEiTOATIONS
REPONSIBLE
BODY
J ^ G P T ^ C M T H E M B E R S T A T E / C O M M E N I S

THE !8:;
F R O M : N L J P O S I T I I N

COMMISSION
O F T H E

;':ow
the periodof time the applicants had available.

In connection with this subject matter of the

objection, according to the documents included
with the case file, the Committee has found the
following:

the rejected candidates had a large number

of documents missing, although they
could have been obtained in due time by
the tenderers, so that the assertion of the
complainant is consistent with reality;
the invitation to tender was published in
SEAP,
the invitation to tender was published in
OffiU;
The tender documents were analysed in
terms of the inclusion of elements which
may have entailed the introduction of
unjustified obstacles likely to restrict
competition;
under the procurement procedure by an
accelerated restricted call for the award of
a works contract with the object:
"Rehabilitation of DJ 506, Crevenia
VitanestiBabaita, km 17+40058+000",
only one objection lodged by M ^ ^
( was admitted by the National
Council for the Settlement of Objections
(NCSO). The objection was registered at
NCSO under No 17970/27 May 2010 and
it was settled by Decision No
3465/C8/3225/7 July 2010, being rejected
as unsubstantiated.
Cosidering that the legal requirements

19
;: : LKSPNSIKLE
BDY

were complied with, according to which the

accelerated restricted procedure was
carried out to such an extent that the
economic operators concerned had available
an adequate and sufficient period of time to
prepare the tenders and the qualification
criteria, the Committee deems that the
period set by the Contracting Authority, i.e.
the period between the date of transmission
of the invitation to tender and the time limit
for the submission of tenders is consistent
with the relevant legal provisions, thus
ensuring the purposes of Article 2(1) of
Government Emergency Order No 34/2006,
as amended and supplemented, with due
regard to the provisions of Article 3 of
Order No 51/2009 as well.

Following the analysis carried out, the

Committee issued Decision No 12/28
September 2011, whereby:
it admits as a whole the objection
registered at the Ministry of Regional
Development and Tourism (MRDT)
under No 66682/7 September 2011,
which was lodged by Teleorman
County Council as an opponent, having
the single tax registration code 4652686,
the registered office/address registered
for tax purposes at 178Dunrii Street,
Alexandria,PO Box140047,with &

representative and ^ ^ as an
authorised agent, with regard to
Findings Note No CA61479/16 August
20
'iN? ENDING ACTIONQJBETAKEN/ RESPONSIBLE PiRIRITY: ;:A G C E P T N G E T H E M E M B E R S T A T E / C O M M E N T S F R O M FINL POSITION O F THE

: : ';BDY;: ; ': : : : :. ;
HIGH/;;:; :: b. T H E M E M B R S T A T E : V' COMMISSION
;
(DAYS) /:
O W:

2011 concerning irregularities and the

application of financial corrections in
connection with Grant Contract No
546/15 October 2009, SMIS code 1124
"Rehabilitation of DJ 506, Cevenia
VitanestiBabaita, km 17+40058+000
and
decidestovoidthedebtsecurity.
All the substantiating documents
underlying the decisions are included as
annexes.

Updatedposition expressedbyMSbyletter
Ares(2012)212310:

Recommendation accepted:

According to the COCOF Note no

07/0037/03 Guideline to determine
financial corrections, a financial
correction of 10% shall be applied tothe
valueofthe contract duetounjustified use
of reduced deadlines forsubmitting offers
bypotential bidders.

Erheet;code1099Rehabilitation DJ701,UmitsDnibovit^
#890 55,450::)^

:11-|!

':;:^::

21
 :
FINDING ;|1! iGRffii ^;

W iSil
Uvil
4. Discriminatory Actiona) MA; 60days High Initial position expressed by MS: The Commission's
technical eligibility ANRMAP services take note
Taking into accoipt Recommendationnotaccepted
criteria ^,:, of the information
the financial provided by the
Applicable legislation implications, and the Checks were carried out in accordance with MS.
Article 23, paragraph 8 facttheCommission's Government Emergency Order No 66/2011
of the Directive 2004/18, services consider the according to Findings Note No 58818/3 Commission's
transposed in Article 38 procedure as a August2011 services close the
of ordinance 34/2006, "quasidirect", 100% finding.
states: "Unless justified Accordingtothedocumentssubjecttochecks,
financialcorrectionis
by the subject matter of which are kept at the registered office of
proposed to be Inrespecttotheuse
the contract, technical MRDTandwhichweresentbythe beneficiary
applied to the value of discriminatory
specifications shall not to be included with the financing application,
ofthecontract. criteria, a 25%
refer to a specific make theapplicationsforpayment,andintheperiod
financial correction
or source. or a Horizontalaction ofthe checks,thefindingsofthe control unit
shall be applied to
particular process, or to werethefollowing:
the value of the
trade marks, patents, See action plan. As regards the use of the qualification contract (point 7of
types or a specific origin Table2 andselectioncriteria the guidelines on
or production with the The invitation to tender was sent for the financial
effect of favouring or publicationinSEAPandOJEU corrections).
eliminating certain The Evaluation Committee considered as
undertakings or certain unacceptable the tenders which were Due to suspicions
products. Such reference submitted with a large number of of fraud,
shall be permitted on an documents missing, as required in the expenditure under
excepionalbasis,where tenderdocuments. this contract should
asufficientlypreciseand Therequirement asregards theuse ofthe not be declared
intelligible description "in situ" cold recycler under the project until the
of the subjectmatter of wasmetbythree ofthefour companies or finalisation of the
the contractpursuant to jointventureswhichsubmittedtenders. investigation. If
paragraphs 3 and 4 is None of the companies which took the fraud is proven by
not possible; such tender documents objected tothetechnical investigations, a
reference shall be solution of the "in situ" cold recycling or financial correction
accompanied by the therelatedmachinesandequipments. of 100% of the
words 'orequivalent''." The in situ recycling procedure is established value of the
and explained indetailsboth inthe feasibility contract shall be

22
JlO i^FNDING:; ; 1SPNSBBLE;: : i^CEPTACEm TJEMEMBERSTATE/CM&ffiNTS ROM. FINAL POSITION OF THE
RECOMMENDATIONS V::J;,:::BDY:::;;';.V COMMISSION
X::::(DYS)I:
Low;:;:

Facts: study, in the brief design and in the financing applied.

application approved. This procedure which
The contracting
was chosen by the designer was approved by
authority established a
Government Decision No 766/1997 approving
detailed list of
certain regulations on the quality in
equipment to be in the
constructions, as published in Official Gazette,
possession or at the
part I. No 352/10 December 1997,
disposal of the
candidates without
"Please note that the in situ recycling
permitting the use of
procedure is used exclusively for road works
equivalent equipment for
and, considering that the subject matter of the
the selection stage of the
grant contract is the rehabilitation of a road,
restricted public
the Contracting Authority used this procedure
procedure used in this
in full compliance with Article 23(8) of
case.
Directive 2004/18/EC and in accordance with
Therefore, the the solution imposed by the technical
contracting authority's documentation approved, included as an annex
set up of detailed to the grant contract.
technical selection
criteria lead to We would like to specify that the
unjustified obstacles to documentation submitted for the approval of
the opening up of public the intervention works (i.e. the feasibility
procurement to study), which was NOT prepared by the staff
competition. of the County Council but by a specialised
company designated for this purpose through
By limiting the an open call procedure, provides that: (...)
competition, the
principle of sound
The brief design (...) provides the following:
financial management,
as stated in Article 14 4 cm of asphalt concrete wearing
(1) of Regulation layer A 16
1083/2006, is not
complied with. 6 cm of connecting BAD 25
Secondly, ANRMAP course binder layer
and MA in its

23
. PRIORITY

asti!:
supervisory role did not 20 cm of natural aggregate layer
identify this specific stabilizedwithcementinsitu (...)
situation during their
verification Underheading 17inthebreakdown ofworks,
itis specified: "20 cmcoldrecycling ofroads
by using the recycler and stabilizing ballast
withcement(...)

In accordance with the provisions of Article

35(3) of Government Emergency Order No
34/2006 and the Operational Manual for the
award of contracts under the public
procurementprocedure,VOLUMEII,page20,
the following are provided: "In the case of
works contracts, the technical specifications
may also refer to prescriptions relating to
design and calculation of costs, ...of the
procedures and executionmethods, aswell as
to any other technical requirements that the
ContractingAuthoritycandescribe..."

By the TECHNICAL SOLUTION (...), the

whole technological process is carried out on
site (situ), on the location of the road, by
wayofasetofequipments:

awatertank

ahotbitumentank

abinderspreader

aplantforthemixtureofcomponents

arecycler

24
 ^FINDING:: SEPONSIBLE DEADLINE PRIORIT ^::8 F I N A L POSITION O F THE
RECMffiNATTONS V/'VHIGH/;;:;;: :: T H M E M B R TTE J : ; : ". ; GOMMISSION; >
BYS) .MgniUvi/:;:
''"'Low'::

compacting cylinders

Among these, the recycler has the main

function because it cuts the deteriorated road,
kneads it and mixes it with the added binder
and then it lays it back. The recycler is not a
process in itself, it is a piece of equipment
required to be included in the list of
equipments according to the technical solution,
which was to be appUed on the road sections
where the designer deemed it necessary,"

Of the 22 tenderers which received the

tender documents, only one tenderer
lodged an objection whereby it considered
that only the qualification and selection
criteria relating to the location of the
asphalt processing plant were
discriminatory in nature.
By its Letter dated 21 May 2009, which was
registered at Teleorman County Council under
No 5882/22 May 2009, the tenderer

which did not participate anymore in the

tendering procedure afterwards, lodged an
objection with regard to the tender documents
and to the procurement data sheet, which was
addressed to the National Council for the
Settlement of Objections (NCSO).
The, subject matterof the objection was the
minimum qualification requirement, according.
to which economic operators had to own n
asphalt processing plant in Teleorman county.

25
 :
:: EioRrrv
iSSeJvffiEOTtiNS BY ul'iCOJVMSroN.

In order to sustain its objection.

^ ! ^ghnwdthat Section4 of
Chapter V in the procurement data sheet
entitled "Technical and/or professional
capacity", required from economic operators
"to own an asphalt processins plant located in
Teleorman county", which the opponent
considered restrictive,therefore contraryto the
provisions of Article 178(2) of Government
Emergency Ordersfd34/2 ofArticle 8
ofGovernmentDecisionNo 925/2006. ?1!

Following the aforementioned objection

lodged, the Contracting Authority took
corrective action pursuant to Article 277(1) of
Government Emergency OrderNo 34/2006, as
amended and supplemented, which consisted
in amending the provisions in Chapter V.4)
Technical and/or professional capacity in the
procurement datasheet.

an objection with regard tothe outcome of the

procedure,whichwasaddressedtoNCSO.

The opponent invoked its right to bring

supplementary supporting documents in order
to substantiate compliance with the
qualification requirements referred to in
Article 11(4) and (5) of Government Decision
No 925/2006 approving the detailed rules
implementing the provisions relating to the
award of public contracts in Government
Emergency OrderNo 34/2006 onthe award of
public contracts, of public works concession

26
:: ;
: N ;
FlbE4G ; ; ; t r r i NTBTAkEN/; I t e S P r S I B L E ; >: : M O R Y ;:AcclEPT^cBTHivifeMBRSTATE/COMNIENS FROM : F I N A L P O S I T I O N T H E
tCOMblENDAtiONS BODY ;1 MEMBERSTAT;; : : r^ ^COMMISSION
rMDJUMJ:
Viem',
contracts and public services concession
contracts.

The opponent equally considered that the

requirement concerning the location of the;
asphalt processing plant within Teleorman
county or the neighboring counties is
discriminatory and inapplicable because the
plant in possession "is mobile and can be
located on any site ".

By its Decision No 4157/C5/2476/4891/21

August 2009, the National Council for the
Settlement of Objections (NCSO) admittedjie
objection lodged by
^ ClujNapoca and issued
a decision for the cancellation of the
procedere .,.,.... ,,..*r

Teleorman County Council lodged a complaint

with regard to Decision No
4157/C5/2476/4891/21 August 2009 of NCSO
at the Court of Appeal in Bucharest.

By its Civil Sentence No 1973/13 October

2009, the Court of Appeal in Bucharest
admitted the complaint of the complainant,
namely Teleorman County Council, and
rejected the objection lodged by
^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ as unsubstantiated, the
decision of the court being final and
irrevocable.

Therefore, the control unit deems that there

are no sufficient grounds to substantiate a

27
mm

Iow
breach from the part of the beBeficiary in
the provisions of Article 178(2) of
Government Emergency Order No 34/2006
and Article 8 of Government Decision No
i:r
925/2006. '"""*

With regard to the conflict of interests

The control unit carried out checks,
including at the National Trade Registry
Office (NTRO), which sent the summary
of the companies involved (from all
viewpoints, namely the associates, the
stock capital, shareholding, secondare
offices etc) for andEf
which does
not reveal any direct connection with any
of!,,,the s persons involved in the
implementation"" of thep r o j e c t ^
TeleormanCountyCouncil.
Moreover, according to the statements of
the beneficiary, none of the managing
staff of the Contracting Authority or
memberoftheirfamilies orrelativesupto
the fourth grade are shareholders or
employees in any of these companies.
Moreover, none of the members in the
tenders' evaluation committee is

Nopubliccontractswereconcludedtothe
benefitofcompaniesmanagedbyspouses,
relativesuptothe fourth gradeinclusive,
akin orbusiness partners withthe county
public authority which organised
tendering procedures, negotiation

28
N "FINDING?' ;
; A C T I N : T O B E J A K E N / ; ; RESPONSIBLE DEADLINE PiiuTY ACCEPTANeE MEMBER STATE/ COMMENTS FROM FINALPOSITIONOETHE
:;::REGENDAnNS:; BODY ^:':;:;:;;.^;:'8:0 COMMISSION
(DAYS):,
::ow:
procedures or calls for tenders. At the
same time, none ofthe persons specified
aboveisinaconflict offinancial interest
becausetheyhavenotobtainedanyrealor
potential profit with thehelp ofapublic
clerk withm the specialised apparatus, a
government official or a person, who
ownsproperties, sharesorholdsacertain
function in the two companies which
participated in public procurement
procedures.
Consideringtheprovisions ofSection 8
Rulestopreventtheconflictofinterestsm
Government Emergency Order No
34/2006,thecontrolunithasnotidentified
any elementstoascertaintheexistenceof
c
a conflict of interests under the
procurementprocessforaworkscontract.
According to Request No 48312/23 June
2011 of the National Integrity Agency
(included asanannex),theAudit Report
oftheCommitteewastransmittedbecause
this institution has the competence to
carry out checks with regard to the
conflict ofinterests.Theresponseto the
requestwasgivenbyLetterNo51574/5
July2011.

Inconclusion,thecontrolunitdidnotfindany
irregularities, as defined in Government
Order No 79/2003 on the control and
recovery of Community funds, andofthe
related cofinancing funds unduly used,as
approvedasamendedbyLawNo529/2003,
as subsequently amended and

29

iillffiiraSIl
ffiilOUTii

lilii
tmWmL
supplemented.

Updated position expressed by MS by letter

Ares(2012)212310:

Recommendation partially accepted

According to the Note COCOF Note no.

07/0037/03 Guideline for determine financial
corrections, a financial correction of 25% shall
be applied to the value of the contract due to
applying too restrictive criteria for selection.

; Works: contract-4

^
: Procedure:: Accelerated:etictedende:
5. Unjustified accelerated Action a) MA 60 days High Initial position expressed byMS: Commission's
procedure based on services take note
ANRMAP Order When verifying the MA; Recommendation not accepted on the reply
51/2009 contract notice, Checks were carried out in accordance with provided by the
ANRMAP should ANRMAP; Government Emergency Order No 66/2011 MS.
Applicable legislation
assess the and Report No 67349 of 12 September 2011
In accordance with the compliance with t i e was prepared. Commission's
provisions of the Article legal provisions services close the
38 paragraph 3 of the when reduced 1. Accordingtothatreport,theinspection team finding.
EU Directive no. deadlines are applied found that, on 29 December 2011 [sic], the
2004/18/EC on the by the contracting beneficiary sent to SEAP the invitation to According to the
coordination of authorities. tender published under No 92716 of 30 COCOF Note no
procedures for the December 2009 for the "Execution of 07/0037/03
award of public works Action b) modernisation worh on county roads in Ilfov Guideline to
contracts, public supply determine financial
30
:= <;. RESPONSIBLE :;: PRIORITY ;^EET^EBYmffiMBERfAE?CIyttlENTS EOMi FINA POSITION OF THE

BCOMMErTOATIONS \JhBim'M ;": 'THE M E M B E C . :: COMMISSION

;:(DY)
:; W

contracts and public Taking into account county". Those works also include the project corrections, a
service contracts and the financial value of concerned, the type of procedure being the financial correction
Article 83 of Emergency this contract accelerated restricted tender procedure. of 25% shall be
Ordinance 34/2006: covering works to be Furthermore, on 31 December 2009, the applied to the value
carried out for all 9 invitation to tender for the first selection of the contract due
"In the case of restricted
projects managed by stage was published in OJEU under No to unjustified use of
procedures, negotiated
this contracting 2009/S 252-362817, in accordance with reduced deadlines
procedures with
authority and the Article 55(2)(c) of Government Emergency for submitting
publication of a contract
timing (holidays Order No 34/2006. The estimated value of the offers by potential
notice referred to in
period), together contract had been set, at the time of the bidders.
Article 30 and the
with the fact that the publication, at EUR 41 300 584.06 without
competitive dialogue:
competition was VAT. Those notices and the contract award
(a) the minimum time limited (3 out of 4 documents specified, under Section IV.3.4,
limit for receipt of bidders were that "The deadline for the receipt of tenders or
requests to participate excluded) a 25% requests for participation is 14 January 2010
shall be 37 days from the financial correction at 9.00", thus ensuring a period of 14 calendar
date on -which the is proposed to be days (in accordance with Article 3(z) of
contract notice is sent. " applied. Government Emergency Order No 34/2006)
As concerns reduce between the date of transmission of invitations
deadlines, paragraph 8 Horizontal actioD to tender for publication in OJEU and the
states: deadline for the submission of applications.
See action plan,
"In the case of restricted Table 2 As regards the publication of a contract notice
procedures and under Article 51(c), this was mandatory if the
negotiated procedures Contracting Authority intended to reduce
with publication of a certain deadlines in applying:
contract notice referred an open call tender procedure pursuant to
to in Article 30, where Article 72(2) (not applicable);
urgency renders or the second stage of the restricted tender
impracticable the time procedure, namely the stage initiated by the
limits laid down in this transmission of the invitations to tender to all
Article, contracting of the selected applicants, pursuant to Article
authorities may fix: 89(2) ('...up to 36 days, and in any case no
(a) a time limit for the sooner than 22 days'). In any event, paragraph
receipt of requests to 6 of the same Article provides that "Where, for

31
? ' 1)1|| l P p s r a i Q N P F TH

participate which may reasons of urgency, the number of days

not be less than 15 days referred to in paragraphs 1 and 2 cannot be
from the date on which complied with... the Contracting Authority
the contract notice was shall be entitled to speed up the application of
sent, or less than 10 the procedure by reducing the respective
days if the notice was period, but to not less than 10 days ".
sent by electronic
means, in accordance Therefore, in this case, the need for the prior
with the format and publication of a contract notice in SEAP
procedure for sending and OJEU was not mandatory, because the
notices indicated in period set initially by the Contracting
point 3 of Annex VIII," Authority in the second stage of the restricted
tender procedure was 13 days, with a
For this contract:
subsequent threeday extension pursuant to
Contract notice was Article 72 of the Order concerned. Thus, the
sent for publication invitation to tender was issued under No 1034
on 30.12.2009. and of 10 February 2010 and the deadline for
submitting a tender was set for 24 February
Deadline for
2010 According to letter No 241 of 23
submission of offers
February 2010, that deadline was extended to 1
was 14.01.2010.
March 2010.
Therefore, the time limit
for bidders to submit On the other hand, when analyzing the
offers was 15 days. correctness of setting a period of 14 calendar
days between the date of transmission of
Firstly, having in view:
invitations to tender for publication in OJEU
a) the reduction of the and the deadline for submitting applications
deadline is foreseen only (between 30 December 2009 and 14 February
when normal timelimits 2010), the following legislative provisions
are impracticable, but apply:
b) when launching the Articles 71 and 83(1), (2) and (3) of
tender procedure not all Government Emergency Order No 34/2006 on
Financing Contracts the award of public procurement contracts,
were approved (for the 9 public works concession contracts and public
contracts included in the services concession contracts, as amended:

32
m 'FINDING: ACTION T B E TAKEN/

COMMENDATINS
RESPONSIBLE DEAJJNE PKKMUTY CCEPTANCBYTHE MEMBER S T / C M I N T ^ FROM:
"v.:; T H E M E I B E R STATE ;.
FlNLf SrriN OF THE
COMMISSION
.(DAYS)

tender) and the works Article 27(3) of Government Decision No

cannot actually start on 925/2006 on the detailed rales for
the field until the implementing Government Emergency Order
signature of the No 34/2006, as amended.
Financing Contracts, and Those provisions are reproduced below:
Article 17 Without prejudice to the
c) the contractual
applicability of the provisions of this
agreement was only
Emergency Order concerning the minimum
signed on 21.04.2011,
periods which must be ensured, on the one
It is our opinion that hand, between the date of transmission of
the use of accelerated contract notices for publication or the date of
restricted procedure transmission of invitations to tender and, on
was not justified. the other hand, the deadline for the submission
of tenders/applications, the Contracting
Secondly, "when fixing Authority shall set that period according to the
the time limits for the complexity of the contract and/or the specific
receipt of tenders and requirements, so that the interested economic
requests to participate, operators have adequate and sufficient time to
contracting authorities prepare the tenders and the qualification
shall take account m documents requested in the contract award
particular of the documents. "
complexity of the
contract and the time
Article 83 (1) Without prejudice to the
required for drawing up
provisions of Article 71, where the estimated
tenders. without value of the public procurement contract is
prejudice to the equal to or greater than the value referred to
minimum time limits set in Article 55(2), the period between the date of
by this Article." (Article transmission of the contract notice for
38 paragraph 1 of the publication in the Official Journal of the
EU Directive no. European Union and the deadline for the
2004/18/EC). submission of applications must be at least 37
By applying the days.
accelerated restricted (2) Where, for reasons of urgency, the number
procedure for this of days referred to in paragraph (1) cannot be
complex tender, with complied with, the Contracting Authority shall

33
4mi :FiNDING& DEADIJNE; ^ FlN^pSITION OF THE
;1=: ... ^MMSSION;
):

extensive selection be entitled to speed up the procedure by

criteria, only 1 offer had reducing the period referred to in paragraph
been able to meet all the (1), but to not less than IS days.
criteria in order to be (3) Where the contract notice is sent, in
selected for the 2nd phase electronic format, for publication in Official
of the tender procedure. Journal of the European Union, the period
This could have had a referred to in paragraph (1) may be reduced
financial impact on the by 7 days and the period referred to in
contracted amount, paragraph (2) may be reduced by 5 days.
having in mind the lack Under these conditions, the minimum deadline
of competition. provided for by the Order in the first stage of
Practically, it resulted in the accelerated restricted tender procedure is
contracting the works for 15 5 = 10 calendar days, which is applicable
an amount very close to subject to compliance with the provisions of
the maximum estimated Article 27(3) of Government Decision No
amount. 925/2006, as updated, and with the
provisions of Article 71.
By limiting the
competition, the basic We would like to point out that the Territorial
public procurement Administrative Unit (TAU) in Ilfov County
principles of equal sent the contract notice for the submission of
treatment and non applications under the first selection stage by
discrimination and the SEAP on 30 December 2009 for publication in
one of sound financial OJEU in computerized form in accordance
management, are not with the provisions of Article 48(2) of
complied with. Government Emergency Order No 34/2006, as
Thirdly, for this updated. This notice was pubshed under No
contract, ANRMAP 2009/S 252362817 in compliance with Article
specifically gave its 83(3) of Government Emergency Order No
agreement for the use of 34/2006.
the restricted procedure,
through the Note no. It has been found that the Contracting
4942/01.04.2011. Authority complied with this minimum period
and, by adding other 4 calendar days as an
Also, according to the extension, the provisions of Article 71 can be

34
:;:;;Jjov ^!&^"1^1^^:-:' :' ::AGTirTBETAIEN/::. BEPNIBLE ::DEADIE:;" EraRrrYl : : ^ G E P l ^ C E m M E M B S U T E / C M N ^ ^ FROM FINAL PdsrrN OF THE
;: /ACOMMENtAtONS ;; ;;^:^ '^^1^^^^^^"^^-}^}^^^^ COMMISSION
':liG)M;^}

activity report of deemed to have been observed as regards the

UCVAP, it has been extension of the period of submission of
verified and concluded applications according to the specific
that the Contracting requirements imposed, with the following
Authority had respected arguments being brought with regard to this
the relevant legal latter issue:
deadlines. o the Procurement data sheet (document No
MA did not spot the 7) includes the requirements and the
minimum levels requested from the
issue in its supervisory potential candidates, among which:
role. in Chapter V.l Personal status of the
Based on the audit work. applicant/tenderer 3 documents;
we have identified that in Chapter V.2 Professional capacity
unjustified shortened - 4 certificates issued by State authorities, 1
deadlines constitute a tax record certificate issued within not more
recurrent irregularity in than 15 days before the opening of
Romania for which the applications, 2 criminal records;
Commission has not in Chapter V.3) Economic and financial
received evidence that status - 4 documents relating to annual
adequate measures are balance sheets and turnover for each
being implemented. member in the joint venture; 1 document
regarding access to credit lines, issued by
the creditor bank(s) within not more than
three days before the date of opening of
applications, to be submitted only in
original;
in Chapter V.4. Technical and/or
professional capacity - 1 list with the main
works carried out, 3 specific declarations as
regards the inhouse technical staff,
subcontractors, machines and equipments
available as well as a sheet for similar
experience and a statement for the
acknowledgment of the contractual terms.
Requirements also involved the submission

35
 iDipjlijtei:
;
'
^GEr^qi:B|fl|E;#ST^
feSiSKBibS'

IOW:
of documents as regards the
possession/acquisition of asphalt mixing
plants, concrete plants, quarries for mining,
laboratories and several related documents
pertaining to each unit.
Operators also had to submit the
legalized copy of the ISO 9001:2001
certificate on the implementation of the
quaUty management system, of the ISO
14001:2001 certificate on the
implementation of the environment
standard, of the OHSAS 18001:2007
certificate on the occupational management
and safety and of the SA 8000:2008
certificate on social accountability;
The requested documents are found at the
registered office of any economic operator,
even more so as they refer to the financial
year completed more than a year before,
and others, such as tax certificates,
ascertaining certificates, bank documents,
tax records or lease/supply contracts, may
be obtained within a reasonable period of 3
to 7 days following the submission of an
appUcation;
Certain aspects in connection with the
above are confirmed by the current practice;
In this stage of submission of applications,
potential participants did not have to
prepare any technical documents (i.e. the
technical proposal, the preparation of
estimates etc).

In order to obtain additional clarifications in

36
:: FUNDING ;:ACTOTQBETAKEN/.. teSPSIBLE. PRORI ' Acc:EpJNGE:B iMiylBTATE Icobmmm FROM FNAL PSrrroiS OF THE
!IteCOMMENDTINS BY ":";1/:':; COMMISSION
(DAYS);;: 1 ; /

this respect, MRDT requested from NRAMPP

by Letter No 63100/23 August 2011 an
opinion with regard to the correct justification
of the 14 calendar dayperiod by the
Contracting Authority, of the compliance
ensured by this entity with the principles in
Article 2(2) of Government Emergency Order
No 34/2006, as updated, as well as with regard
to the correct establishment of minimum
requirements as regards the obligation to
implement the SA 8000:2008 standard relating
to social accountability. It was noted that,
pursuant to Article 2 of Government
Emergency Order No 74/2005 on the
establishment of NRAMPP, as subsequently
amended and supplemented:
Article 2 "For the purposes of its functions,
the Authority shall have the following main
tasks:
d) to ensure an appropriate fi-amework for
the consistent application of the legislation in
the area of public procurement, and pursuant
to Article 3:
Article 3 " the duties it was entrusted with
and by its structure, the Authority shall carry
out the following tasks:
e) methodological guidance to
Contracting Authorities during the public
procurement process, supporting the correct
application of the relevant legislation".
According to the response of NRAMPP,
pursuant to Letter No 13741/26 August 2011,
registered at MRDT under No 64571/30
August 2011 (document No 8), "...the grounds
as regards the speeding up of the public

37
? - ^pQ!S;tQ:B : .: & mmi.
Bolov^

&
procurement procedure for the award of a
works contract in order to reduce and set the
periods were correctly substantiated, and the
Contracting Authority observed the principles
referred to in Article 2(2) and the minimum
periods referred to in Government Emergency
Order No 34/2006". As regards the requested
certifications, "...the contracting authorities
shall be entitled to request from economic
operators to submit the SA 8000:2008
certificate as part of the qualification
documents only where this requirement is
relevant for the performance of the contract
which is to be awarded, and proportional with
the nature and complexity ofthat contract".

In conclusion, the control unit established

that the beneficiary (ATU Mov), as a
Contracting Authority, did not commit any
breach in the specific provisions of the
legislation in force as regards public
procurement, and no financial corrections
are required to be applied with reference to
the provisions of Article 6(3) of Government
Emergency Order No 66/2006 on the
prevention, ascertaining and sanctioning of
irregularities occurred in the procurement
and use of European funds and/or of their
related national public funds.

Updated position expressed by MS by letter

Ares(2012)212310:

Recommendation accepted

38
":; : ::fwNGJ v :; "; ^ TAKEN/ ;::11:;:;: dRmRiT i FINAL POSITION OF THE

According to lhe COCOFNote m. 07/0037/03

Guideline to determine financial
corrections, a financial correction of
25% shall be appUed to the value of the
contract due to applying too restrictive
criteria for selection.
6. Unjustified/ Incorrect Action a) MA 60 days High Accepted recommendation Commission's
use of negotiated services take note
procedure without The managing Checks were carried out in accordance with of the information
publishing a contract authority should Government Emergency Order No 66/2011 provided by the
notice in the case of perform an analysis and the Findings Note was prepared: Romanian
similar works of the works authorities. The
performed imder the As regards the application of the negotiated value of
The Contracting addenda to the initial 3,627,416.08 lei
Authority had made use contract in order to procedme without the publication of an
invitation to tender, in the case of similar related to the above
of the provisions of identify which part of
Article 122 of OUG works, the control unit has found the mentioned SMIS
the works qualify as following: project should be
34/2006.
"similar works" and In the Procurement data sheet it was stated corrected.
According to the Article which part are that the Contracting Authority is entitled to
mentioned above, in "additional works". opt for the subsequent acquisition of new Nevertheless, the
case the Contracting works from the economic operator whose same analysis and
Authority intends to Additional works tender will be declared successful under the correction should
apply the negotiated shall not be eligible. procedure pursuant to Article 122(i) and (j) be applied for the
procedure without of Government Emergency Order No other projects
publication of a contract Action b) 34/2006. fmanced from
notice for contracting The works set out in Addendum No 1, 3, 5 ERDF which fall
similar works, the Having in mind that and 16 were referred to in the construction under the same
estimated value of the the contracting site orders by the designer and were contract.
initial contract should be authority approved by addendums to the works
determmed taking into compensated the contract by the beneficiary and the The Commission's
account all similar works additional works constructor. services consider
foreseen to be contracted awarded to the
The total value of Addendum No 1, 3, 5 and this finding closed
at a later stage (Art 122. contractor by
16 was 3,627,416.08 lei, which is below the under the present
renouncing to other
i). maximum rate referred to in the grant audit procedure.
works included in Follow-up of the
39
EN?! il^^iONlTBElKP BJEJSEONpE lJrjilNE; PRIORITY 1;;1#^ ]?:10^"|. ;:: ;
!
Bomr ""1:" ' &MMISSON
!):
m
For this contract, the initial technical contract, i.e. 10% of the value of the works corrective
the estimated amount design, Romanian contract. measures will be
in the contract notice authorities should With regard to the acquisition of the works done during
was 207 M lei, and perform detailed listed in Addendum No 3 and 16, the future audit work.
technical checks on beneficiary failed to meet the cumulative
it was estimated an the deliveries to requirements imposed by Article 122(i) of
additional amount of determine whether, Government Emergency Order No 34/2006
similar works in amount the finalised project concerning the application of the negotiated
of650Mlei. complies with the procedure without the prior application of
Practically, until the initially approved an invitation to tender, because it did not
moment of the report, one and with the provide proof that these works became
similar works in amount initially approved necessary for the performance of the
of 203.102.141 have technical design contract due to certain unforeseeable
been contracted as based on which circumstances.
similar works. works contracts have Moreover, the beneficiary may not invoke
been awarded. This the opportunity for the acquisition of
Similar works are action should be additional works if the data provided in the
considered to be taken before closing application form had been changed.
repetitive works of the the financed projects With regard to the acquisition of the works
ones included in the affected by this listed in Addendum No 1 and 5, the
initial contract and works contract. ' beneficiary failed to meet the cumulative
which are in line with requirements imposed by Article 122(j) of
the tender Government Emergency Order No 34/2006
documentation. concerning the application of the negotiated
It is our opinion that Horizontal action procedure without the prior publication of
amount foreseen for an invitation to tender.
plan.
similar works is See action The legal text referred to, i.e. Article 122(j),
disproportionate as Table 2 provides that the estimated value of the
compared to the initially initial contract is set by taking into account
contracted amount (three as well the similar works which may be
times the value of the acquired subsequently.
initial contract). Thus, The beneficiary contradicted itself when it
the principle of sound asserted that, upon the initial acquisition, it
financial management took into account works about which it
subsequently stated that they became

40
 :
m IFIMMNG;: /:;;;
RECQMMENDiONiS
IteSPOrlBLE
BODY
DEADLINE PRIORITY i^EPTTANG BV;TE;affil\Ell:STAE/GOKTSFRM:;
:THE TTE::: ; '
FINAL POSITION OF THE
COMMISSION

.':;?;lJW;,:':.;

was not complied with. necessary due to certain events which were
Secondly, under the not considered when the initial project was
umbrella of similar prepared (weather conditions, heavy
works, additional works traffic).
were contracted as well Considering the findings above, as regards
at least in amount of the conclusion of Addendum No 1, 3, 5 and
5.059.398 lei (Addenda 16, the control unit considered that the
number 3, 8, 9, 10 and beneficiary failed to apply correctly the
11). negotiated procedure without the prior
publication of an invitation to tender, which
In addition, for the is contrary to the cumulative requirements
Addenda number 12, 13 imposed by Article 122(i) and (j) of
and 14 the nature of the Government Emergency Order No 34/2006.
works is not indicated.
Considering the fact that, until the date
The related amount is
when the checks were carried out, no
9.300.349 lei.
amount was settled to the account of the
Also, for Addendum beneficiary under Works contract No
number 1, the contracted 3335/11/21 April 2010 which was concluded
works cannot be with the joint venture
considered as similar
because these are a
consequence of a the Managing
modification of the Authority for the Regional Operational
initial technical solution, Programme will not refund any expenditure
which implies incurred by the Administrative-Territorial
renouncement to a Unit of Ilfov county under Addenda No 1,3,
number of works and 5 and 16 to this contract.
execution of additional
works (not initially
foreseen).
From the data available,
the Addendum number 4
could be as well partially
affected, as it foresees

41

:,,:

execution of additional
works.
Therefore, the
additional works
cannot be considered
as eligible to be
contracted as similar
works and are
irregular.
Please see Annex 1 of
the Report, for an .-;

overview of the
Addenda signed for
similar works.

;Framework;agreement:
; Value; of cointrct^Percentage: ;of the works: contracts t ;peryised ;
: : Procurement procedure:; Itidr ; ;
7. Noncompliance with Action a) CA; MA 60 days High Accepted recommendation Commission's
the contractual services take note
provisions Contracting Checks were carried out in accordance with of the information
Authority shou Government Emergency Order No 66/2011 provided by the
Framework agreement provide justification and the Findings Note was prepared: MS.
for supervision services on the percentages
of 33 works contracts agreed during the
was concluded with 3 With regard to the conclusion of the Based on the
subsequent subsequent services contract for Procedure report
42
?; ::;FNMNG:: vATO^:TO:B.T^N/;; BESEQNSIBLE: DEADLIE RIORiTY ; i ^ c E P i p i c : B Y r a E STATE /COMMENTS FROM FlNLPOSiTIN OFTHE
; r f e c M N A t l N S :' JBDY ;;::>::;:THE M E M B E R f A T E GOMMISSroN
i;(RAYS) M E D I U M /
::::]JOW';V;

eligible tenderers. The negotiations for technical consulting as regards the forawarding
award criterion was the specific contracts supervision of works, the control unit subsequent
lowest price. In this with thewinnersof notedthefollowing: contractno.
situation, the value of the framework the Beneficiary concluded 7399/13.07.2009,
the framework contract contract which did services agreements withthe following theCommission's
is expressed in not complied with tenderers: understanding
percentages applied to the provisions ofthe thatonly!
the value ofthe works framework contract. didnotrespectthe
contracts to be percentageinitially
supervised. Horizontalaction offered.
(undIjprice:0.516%);
0.35%: See action plan, ((unitprice:0.65%). Thispracticewas
Table2 The Beneficiary concluded the putinquestionin
subsequent services contract No 14/4finding no.7.
0.516%;
May 2010 w i t h ^ ^ ^ ^ ^ ^
0.65%;
^ for 0.64%ofthe Therefore,the
When awarding the valueofthesupervisedworks. Commission
subsequent supervision The Beneficiary setintheframework considersas
contracts,thecontracting agreements themaximum rate of the irregularthe
authority renegotiated subsequent contracts as "theestimated amountwhich
theconditionswiththe3 value ofthe subsequent contractwith resultsfromthe
qualifiedtenderers. thehighestratewhichisforeseen tobe differencein
awardedontheperiodofthecontract". percentage offered
During the subsequent
Theanalysisofthelegaltexts specified duringthe
negotiations, oneofthe
by the Beneficiary (Article 143 of subsequent
tenderers submitted Government Emergency Order No negotiationswith
offers higher than the 34/2006, in conjunction with Article theabove
one
initially tendered 65(f) of Government Order No mentioned
(i.e. , cca. 925/2006)revealedthatthis"estimated company.
0.64%) value..."isused forthedetermmation
Havinginview: of thevalue thresholds according to Havinginview
which theaward procedure ischosen, thatthevalueof
Article32,paragraph2 not for the imposition of certain thesubsequent
of Directive 2004/18 minimum qualification requirements. contractsis
states: "When awarding Thus,thecorroborationofthetwolegal expressedin
contracts based on a
43
 illlDING
BDY

framework agreement, texts considered by the Beneficiary is percentage to be

the parties may under not applicable. applied to the value
no circumstances make The Beneficiary and the providers of of the works
substantial services introduced under Article 7.2 of supervised; the
amendments to the the framework agreements a maximum total value of the
termslaiddowninthat tendering rate of 0.65%, thus altering correction depends
framework agreement, the outcome of the tendering procedure on the expenditure
in particular in the case whereby the tender ranked on the first declared by the
referred to in paragraph position had a value of 0.35% in breach final beneficiary.
3." of the provisions of Article 200 of
Government Emergency Order No Provided that the
provisions of the Romanian
34/2006, Article 82(1) and (4) of
initially concluded authorities
Government Decision No 925/2006.
framework contract, corrects a
Following the reiteration of the
paragraph 4.2: "The payments related
tendering procedure, the Contracting
subsequentcontractswill to the contracts
Authority did not obtain any
be awarded by re concluded with
improvement in the price, which led to
launching the C.S.T SRL
the reiteration of the competition Mndesr
competition^v;with the according to the
Article 68(2)(b). In these
enterprises signing above mentioned
circumstances, the Contracting
framework contract, reasoning, the
Authority had the obligation to award
which. wlt. tender a Commission's
the subsequent contract to the tenderer
percentage applied at the services consider
which was ranked: on the first^position
value of the specific this finding closed
under the procedure applied for the
contract for which the within the present
conclusion,.., :of; the framework
service will be provided; contradictory; >, ??
agreement, by considering .the
this percentage shaU procedure.
conditions and elements set out in the
not be over the
latter's initial tender, i.e. ^ft
maximum percentage
tendered for the award Follow-up of the
of the framework > for the value of corrective
contract." (i.e. 0.35%) 0.35% of the value of works subject to measures will be
supervision in accordance with the done during
The contracts provisions of Article 69(6) of future audit work.
concluded subsequently Government Decision No 925/2006.
with the &^^^k do Considering that the Beneficiary,

44
?:::; ^[^^^^^} , / ; ; : f:; ; : K E P C I B L E . : ' 4 ^ V! TiuoiarrY FiNJLPOSrilON OF THE
:
;: 011 5:.j ; : ; T H E 1 M E M B R S T T E ; . v GMMISION ::::

namely the Administrative Territorial

Unit of Ilfov county, concluded the
subsequent services contract No 14/04
as the price to which the May 2010 in breach of the national
contract was awarded legislation on public procurement, and
exceeded the percentage taking into account the provisions of
initially tendered. Article 9(25) of the grant contract, all
the expenses incurred by the
Therefore,
Beneficiary with technical consulting
based on the (originally
services as regards the supervision of
agreed) percentage
works under Budget line 3.5 are
included in the
framework contract is ineligible.
considered as irregular. Considering that, until the date when the
checks were carried out, no sum was settled
to the beneficiary's account under the
subsequent services contract No 14/4 May

Authority under the Regional Operational

Programme will not reimburse any expense
incurred by the Administrative Territorial
Unit of Ilfov county under this contract.

CommentonthefinancialselectioncriteriausedbyATUBuzauandATUIlfovcontractingauthorities

8. Commission services ANRMAP should be ANRMAP Permane High Noreplyhasbeenmcludedinpresentdocument Following the
noticed that both more proactive nt measures
contracting authorities when suspecting use implemented under
have used restrictive of restrictive the action plan for
financial criteria in the selection criteria lining the
selection stage of 3 whichmightresultin interruption of
public procurement a limitation of payments
procedures (i.e. liquidity competition. deadlines, the
ratio over 100% and Commission closes
solvency ratio over this finding under

45
: ! PiiuoRiiyS

35%). the present

Several months later contradictory
(My 2010), national procedure.
legislation in place
(national ordinance
34/2006)changedstating
that, liquidity ratio
shouldnotbeover100%
while solvency ratio
should not be used as
selectioncriteria.

Information and We take notice that MA Permane Low Acceptedrecommendation Commission's

communication the modifications nt servicestakenote
Theapplicantsguidewas were mainly formal oftheinformation
ones. However, a TheGuidelinesforApplicantsrelatingtothem providedbythe
modified twice by area of intervention 2.1 andthose relating too MS.
corrigenda and good practice would
major areas of intervention have been subjec
republishedoncewithout be to interrupt the changes following certain legislative updates, TheCommission's
interrupting the session call for projects in streamlining of certain procedural aspects am services consider
forcallforprojects. order to allow the
applicants to adjist areas, the introduction of recommendations i this finding
their applications auditors,inparticularthoserelatedtotheproces closed.
appropriately. the technical and financial evaluation, and tl
related to certain aspects in the technical
economicdocumentationetc.Suchmeasuresdie
affect theactualprocessinvolvingthedesignol
project. Moreover, when new procedures
initiatedforthemajor areasofintervention4.3,
and 5.3, the National Centres for Toi
Information and Promotion, the guidelines

46
' ;:EiNDiNG:: 'ACnpNlOETMN/;.; iEESEQNiBLE DEADLINE; CCFEANE^THE:MDpiBmS : FlNLPOSirroN OF THE
RECOMiVffiNDtONS :l;:vHiGH/:;::; : : : : : T H E M E M B E R S T T E ".V COMMISSION
{DAYS)
:\:::::'Lw::';:":''

applicants were also subject to changes folkrv

the preliminary public consultations. It is
noteworthy that the Guidelines relating to the m
area of intervention 2.1 were republished follov
the beneficiaries' requests to have a consolid
version of the document. However, ROP MA
be able to apply this measure to the subsequent
for applications and/or within the follov
programming period.

10. Equal treatment of In order to ensure MA 60 days Medium Accepted recommendation Commission's
final beneficiaries equal treatment and services take note
nondiscrimination We would like to point out here that this issue of the information
A significant number of was also approached with the Audit Authority. provided by the
between applicants,
technical clarifications ROP MA tried to establish a clear distinction MS.
managing authority
were requested by the between the requests for clarifications and the
should clearly
IB's during compliance requests aimed at supplementing/improving the The Commission's
stage verification or by identify types of
clarifications that projects. From the viewpoint of ROP MA, the services consider
the external evaluators request for clarifications must not however this finding closed.
during the financial and could be requested. allow the applicant to bring new documents
technical evaluation of which should have been annexed to the
projects. It can be argued financing application, which was checked in
that some of the the stage of compliance and eligibility.
clarifications requested Nevertheless, during the technical and
improved the initially financial evaluation, the feasibility study/the
submitted projects. The documentation for the endorsement of the
decision on requesting or intervention works can have certain non
not clarifications is a correlations or certain incomplete parts. Those
subjective one and could aspects must be corrected. Otherwise, an
lead to unequal extremely high rate of projects should be
treatment between final rejected due to these inconsistencies. Based on
beneficiaries. our experience as regards checks, most of the
reasons for rejection are given by the absence
of documents (subject to the compliance and
eligibility stage), such as deeds of property, the

47
;
ffielErTOATitNS BOD
(

endorsement from the Mimstry of Education

and Research, the Technical/technical
economic endorsement from the Ministry of
Public Health, the Environmental Sheet
required under the Urban Planning Certificate
etc) or even the extremely low quality of the
feasibility study, including the Cost Benefit
Analysis which was contrary to the specific
recommendations (during the technical and
financial evaluation) etc. However, any
dissatisfied Beneficiary has the possibility to
send an objection to ROP MA.

However, considering that most of the proj

which are pending completion at this stagi
extremely low, and that the submission of proj
is suspended in most regions and areas, we inten
settle this issue during the following programn
period.

11. Technical evaluation of Managing authority MA 60 days Medium Accepted recommendation Commission's
projects should take measures services take note
and strengthen its This measure has already been applied for the of the information
Technical evaluation of
verifications in order major area of intervention 1.1 as of June 2010 provided by the
projects is performed
to ensure compliance (the Growth and Urban Development Poles MS.
mainly documentary.
with the principle of operations), the procedure provides that the
This approach may lead
sound financial Feasibihty Study and the Brief Design be The Commission's
to approval of projects
management as it is subject to an onthespot visit made by services consider
not well prepared. As a
stipulated in Article independent assessors. Moreover, the meeting this finding closed.
consequence, many of
14 (1) of Regulation with the Beneficiary for clarifications is also
the problems occurring
1083/2006. An early envisaged. In addition, we point out that in
during the
onthespot visit connection with the quality of the Feasibility
implementation of
could mean a more Study and of the Brief Design, it is dependent
projects seem to be due
robust check on the in most cases by the very poor expertise work
to low quality of the
quality and maturity or other studies. Another major improvement
feasibility study and

48
 ^:\:1 ': V ; : : A C 1 ^ : T B E : T ^ N / ; : U I^SPrSIBLE':; A ^ i r ^ C ^ FROM. FINALPOSITIONOFTHE
; :; MeOM^NDATIONS ]THEMEMBERSTATE" ;:: COMMISSION
) : ':(:^
:
Low :;:::; ^
technical design, aswell of the project. of the procedure was that independent
as differences with the assessors may request the technical expertise
realityonthefield. work in order to see whether the Feasibility
Studytakesoverthe solutions proposedinthe
Moreover, the onthe
expertisework/studies.
spot visit bv the IB is
performed at avery late
In addition, almost 99% of the technical
stage (just before the
financial evaluations are completed, with
signature of the
financing contract); in exception of the major area of intervention
addition, the main GrowthandUrbanDevelopmentPoles.
purpose ofthevisit isto
check the existence of
the original
documentation
submitted in the
financingapplication.

12. Overlapping Although the MA Permane Low Acceptedrecommendation Commission's

compliance procedures have nt servicestakenote
verifications been improved by We agree that the compliance and eligibility oftheinformation
the managing stages are likely to have some cases of providedbythe
Audit team notices authority since overlappingasregardscompliance. MS.
overlapping verifications laimching the
(compliance and programme, they This approach was made in order to ensure a The Commission's
documentary could be further single decision for the two substages of services consider
verifications performed streamlined in order verification. Fromourviewpoint andbasedon thisfindingclosed.
by 2 employees in the to avoid unnecessary our experience, the connection between the
IB). These verifications administrative checksoncomplianceandeligibilityisclosely
are in line with the verifications. related certain headings in the compliance
procedural requirements grid were erroneously interpreted, e.g. in the
of the managing case of projects developed in partnership, the
authority, but they are related documents, the existence of CVs, the
not focussed onthe risk Cost Benefit Analysis included in the
areas (i.e. there is no FeasibilityStudy,notseparatelyetc)
qualitative approach of

49
'^^
'^^1^^!1

the evaluations for visits However, consideringthatmostoftheprojects

onthespot). have been completed at this stage or their
number is significantly low, we intend to
approach this issue during the following
programmingperiod.

50
 TABLE 2

FOLLOW UP OF THE ACTION PLAN BY THE ROMANIAN AUTHORITIES

?: Audit finding Summary ffinding ii ^Actions ;;8:;;&:1:;:^:: Tteppniblebody/Documentsprovided

pdiyrbles to be prr

Effective Following the verifications carried Actions: MA,ANRMAP,UCVAP

functioning of out, irregularities have been i) The managing authority is reminded that it
the identified inrespecttotheawardof3 has overall responsibility for the management The Romanian authorities have provided
management out of 4 works contracts. These verifications.Itcanchoosetoentrastsomeorallof the following information (letter
and control contracts were concluded for works these tasks to other bodies. However, it cannot Ares(2011)1076539/11.10.2011, ARES
system with related to 12 road projects, and delegatethe overallresponsibility for ensuringthat 1129227/24.10.2011 and letter no
regard to represent around 84% of the they are properly carried out. Therefore, where 653/31.10.2011),namely:
public eligibleexpenditure ofthe projects certain tasks have been entrusted to other
procurement includedinthesample.In addition, a) Reports on the management
bodies, the managing authority should, in its verifications carried out by the
verifications findingshavebeenraisedinrelations supervisory capacity, obtain assurance that the
to2servicecontracts. managingauthority;
taskshavebeenproperlycarriedout.
The following significant findings b) Revised agreement of 9 September
identified distorted the competition Inthis view, as routine supervision and, certainly, 2011onthesetupofthesystemrelated
where managing authority has concerns that the
by limiting the access to the market to the verifications of public
tasksarenotbeingproperly carried,itshould carry
ofthebidders: procurement procedures, together with
out own verifications by examining a sample of
i) use of discriminatory files.The number offilesinthe sample should be legal framework ensuring the
technical criteria for based on a risk assessment taking as well into accountability of the bodies entrusted
selection stage of restricted account the quality/reliability of the work withthe checks onpublic procurement
procedures; performed byANRMAPandUCVAP. procedures.Thedefinition oftasks and
responsibilitiesofallbodiesinvolvedin
ii) unjustified useofaccelerated ii) The tasks and responsibilities of all bodies the public procurement verification
procedures; involved in public procurement (managing system have been redefined and the
iii) incorrect use of Article 122 authority, ANRMAP and UCVAP) should be accountability ofexantecontrolbodies
of national Ordinance clearly defined for eachstep oftheprocess sothat (ANRMAP and UCVAP) have been
34/2006 (additional works checks tackle risk areas and identify in due time formally reinforced. These two public
contracted as similar works problems and irregularities and propose remedial procurement bodies are now subject to
through negotiated actionsand/orfinancialcorrections. auditsperformedbytheauditauthority.
procedure without iii) It is recommended to formally reinforce the
c) Description of the risk factors taken
51
 Audit fnding Summar)' of fnding bojdy^^^
Deliverables to be provided within 2 months

publishing a contract notice) accountability of the two bodies (ANRMAP and into account for the verifications
Therefore, in the opinion of the UCVAP) entrusted to regulate and verify ex ante performed. According to the revised
auditors, the basic public the public procurement procedures in Romania. set-up of the management and control
procurement principles of equal The institutions verifying ex ante public system, the managing authority
treatment and non-discrimination and procurement aspects should act as delegated bodies, performs ex post verifications on public
sound financial management have part of the management and control systems of the procurement procedures regardless
not been complied with. operational programmes, being legally accountable whether these procedures have been
for their actions, while the managing authority verified ex ante by the ANRMAP or
In addition, despite several layers of UCVAP. The selection of procedures to
should remain ultimately responsible for the correct
verifications, neither A1SDRMAP and be verified takes into account risk
UCVAP, nor the managing authority spending of funds. factors and specific sampling
identified the irregularities presented When re-defining relationship and division of tasks methodology.
below. between managing authority, ANRMAP and
UCVAP, the process should be based on the d) Revised procedures on management
provisions of the "Guidance document on verification.
management verifications to be carried out by
Member States on operations co-financed by the e) AA's reports on compliance audit
Structural Funds and the Cohesion Fund for the carried out on ANRMAP and UCVAP
2007 - 2013 programming period" (COCOF
08/0020/04). Commission analysis and
iv) With regard to the contents of the management recommendation:
verifications, the responsible bodies should focus
on the substance and on the risky areas, rather than Please see section 3.i) of the report.
on the formal aspects.
The content of tendering notice, regarding the
selection and award criteria, the respect of the
legally applicable deadlines and the adequacy of the
tendering procedure (in particular for negotiated
procedure) shall be duly checked ex-ante by
ANRMAP, in full, and by the MA in its supervisory
role on a sample basis.
The transparency and the fairness of the
procurement procedure and, in particular, the
selection and the award phases by the correct
 ^uditniiaiiig ; Sunmaiy of fiiiing :;:Actionsdescription&s Responsiblebody4Documentsprovided
Oliverabiestbeproviedwithin12monti
jXpimoidr':.
application ofthe corresponding published criteria,
should be carefully monitored by UCVAP, when
participating as observer in the respective
committees and bytheMA,in itssupervisory role
onasamplebasis.
v) The responsible bodies (MA and
ANRMAP/UCVAPsupervisedbytheMAasafirst
level of control) should carry out effective
management verifications, resulting in the
identification of all irregular expenditure and
leadingtothenecessary correctivemeasuresbythe
MA includingfinancialcorrections and preventing
declaration of ineligible expenditure to the
Commission if the public procurement procedure
has not been legal and regular even if the other
bodies(ANRMAP/UCVAP) havenotidentified the
issues.Whentheirregularities arenotdetectedand
corrections not made at the first level of control
then the correction should be made atthe level of
whichservesasasecondindependentlevelof
control.
vi)Overallcoordinationofthebodiesandincreased
and continuous capacity buildingwithin thebodies
will be critical success factors in promptly
improvingthemanagementoftheEUfunds.
Theauditorswereinformed thatthereisalreadyan
actionplanrunninginthecontext ofincreasingthe
capacity to absorb EU funds which may fit into
someoftheCommissionrecommendations.
Deliverables:
a) Reports on management verifications
methodology with focus on public procurement
carriedoutbythemanagingauthority.

53
 finding Summaryof finding Responsible^^^

b)Revised agreement onthe setup ofthe system

related to the verifications of public procurement
procedures, together with legal framework
ensuringthe accountability ofthe bodies entrusted
withthechecksonpublicprocurementprocedures.
c)Updated workflows and procedures focusing
onriskareas.
Discriminator The audit team identified that Actions: MA,ANRMAP,UCVAP
y technical discriminatorytechnical criteriawere a)Themanagingauthorityisrequestedtoverify all
selection used inthe selection oftenderers for
workscontractsunderthepriorityaxis2.1toscreen The Romanian authorities have provided
criteria twopublicprocurementprocedures. fortheexistenceofdiscriminatory selectioncriteria the following information (letters
in the tender notice. The results of this analysis Ares(2011)1076539/11.10.2011 and ARES
These types of irregularities should
shouldbereportedtotheCommission 1129227/24.10.2011),namely:
have been detected exante, at the
level of ANEMAP, when verifying b) Managing authority and ANRMAP should a) With regard to the screening of all
beforepublication,thecomplianceof update their procedures and improve their works contracts under the priority axis
tender notices with relevant EU and verifications in order to identify and prevent the 2.1, themanaging authority provided a
nationallegislation. occurrenceofsuchcases. databaseofthe46contracts for which
suspected irregularities have been
ANRMAP can perform these Deliverables:
identified with focus on public
verifications also by the help of a
a)Reportontheverifications carriedout. procurement together with the
database developed in compliance
verification reports. Following the
withArticle 101,ofOrder9215/2006.
c)Updated workflows and procedures focusing verifications carried out by the
Secondly,themanagement authority, onriskareas. managing authority, irregularities have
the body responsible for the beenconfirmedfor29contractsandthe
d)TheManagingauthoritymustfollowup possible
implementation of the programme, management authority proposed
fraud indicatorsandreportsuchidentified casesto
should have detected such cases of financialcorrections for the amount of
nationalcompetentbodiesandtoOLAF.
noncompliance during their checks EUR20.507.752,24.
forthemanagementverifications.
b) Updated procedures for management
verifications including the risk
assessmenttobecarriedout.

c) With regard to allegations of fraud

raised by the Commission, the
54
kjfOV:; ;{:;^ fi

Romanian authorities confirmed only

one case of the conflict of interest. For
the other two cases, national
investigations are under progress.

Commission analysis and

recommendation:

Please see section 3.ii) of the report.

3. The Contracting Authorities made MA, ANRMAP, UCVAP

use of certain actions taken in the
a) The managing authority is requested to make
context of the recovery package, as Please see comment above for documents
sure that all works contracts under the priority axis
explained in Council's requested under pomts a) and c).
2.1 are verified for the existence of discriminatory
communication of 12 December
selection criteria in the tender notice. The results of The guidance requested under point b) was
2008, transposed in the national
this analysis should be reported to the Commission provided by AMRMAP under the format of
ordinance 51/2009. Specifically,
shortened deadlines have been set in a national Order no. 509/2011.
b) ANRMAP
the tender notices, for works tenders on use of accelerated procedures
launched during 2009 and 2010. Commission analysis and
including best practice cases.
recommendation:
ANRMAP took a horizontal
c) Managing authority and ANRMAP should
approach and allowed the use of Please see section 3.ii) of the report.
shortened deadlines, instead of
in order to identify and prevent the
having a case by case assessment of
occurrence of such cases.
the urgency and complexity of the
contracts to be awarded by taking
into account the principle of
proportionality.
on the verifications carried out.
Nonetheless, both the Directive
b) provided to contracting authorities.
2004/18 and national ANRMAP
Order no. 51/2009, Article 3, c) focusing
stipulate that this principle need to be on risk areas.
considered when taking the decision
 rinding Summary of finding Actions description & Responsible body / Documents provided
Deliverables llBl provided within 2 months
ffliffiU!
of using accelerated procedures so
that the acceleration of the procedure
should not be an impedimerit for the
enterprises to submit appropriate
tenders. I

Additional The Contracting Authoijity has Actions: MA, ANRMAP, UCVAP

works made use of the provisions of
contracted as Article 122 of OUG 34/2006,
similar works which states that the Cor.tracting
Authority is allowed to apply the
negotiated procedure without
publication of a contraci: notice
for contracting similar works.
However, the auditors identified
that additional works haye been
contracted under addenda under
the umbrella of similar| works.
The amounts foreseen foil similar
works are 3 times the initial
contracted value.
a) Managing authority should screen all contracts
Please see comment under action 2.
under axis 2.1 to identify and correct cases where
additional works have been contracted under the
Commission analysis and
name of similar works.
recommendation:
Deliverables:
Please see section 3.ii) of the report.
a) Reports on the verifications performed to be
provided within 2 months.

56
/9