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New order on the interpretation of GEO no. 34/2006

The Order no. 553/2011 issued by National Authority for Regulating and Monitoring of Public Procurement for the interpretation of article 243 of Government Emergency Ordinance No. 34/2006 regarding the award of public procurement contracts, public works concession contracts and services concession contracts (the “Order no. 553/2011” / the “Order”) was published in the Official Gazette, Part I, no. 735 of October 19th, 2011 [in Romanian, Ordinul nr. 553/2011 pentru interpretarea art. 243 din Ordonanţa de urgenţă a Guvernului nr. 34/2006 privind atribuirea contractelor de achiziţie publică, a contractelor de concesiune de lucrări publice şi a contractelor de concesiune de servicii].

The Order was enacted pursuant to the Decision of the EU Court of Justice in case C – 393/06 Ing. Aigner, Wasser-Wärme-Umwelt, GmbH v Fernwärme Wien GmbH, with the scope of a unitary approach of all the parties/institutions involved in the process of awarding the public procurement contracts, in the process of verification of the awarding modality and of the development of such contracts, as well as regards the settlement of the claims filed regarding the awarding procedure.

Most important, the Order no. 553/2011 was enacted in view of interpreting the provisions of art. 243 of Government Emergency Ordinance No. 34/2006 regarding the award of public procurement contracts, public works concession contracts and services concession contracts (the “GEO no. 34/2006”).

Thus, according to the Order no. 553/2011, the sector contracts were qualified as being the contracts which are awarded by a contracting authority for the purpose of developing an activity within the water, energy, transport and postal services sectors and whose object represents the acquisition of products, services or works which are intended, directly or indirectly, to the fulfillment/support of the relevant activity. For this reason, there are also sector contracts the contracts which have as an object the acquisition of products/services/works which are intended to the functioning of the contracting authority from an administrative and organizational point of view.

The provisions of art. 243 of GEO no. 34/2006 do not apply in case the products/services/works which are object to the respective contract are intended for the development of action/actions of the contracting entity, which does not have the quality of a contracting authority, other than the relevant actions.

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