The Court of Accounts demands the sanctioning of the authorities that delay contesting public tenders

The Court of Accounts recommends supplementing the legislation on remedies and appeals in the matter of awarding public procurement contracts (Law 101/2016) with sanctioning measures, with the aim of preventing the delay in the submission by the contracting authorities of the documentation necessary to resolve the appeals, it is stated yesterday in a press release issued by the public institution after an audit report drawn up regarding the contestation of public tenders.

The Court analyzed the appeals resolution process from the perspective of time, as part of a performance audit mission carried out at the National Appeals Resolution Council (CNSC). The mission took place between January and June 2023 and focused on the activity of resolving appeals by the CNSC in the period 2020-2022. During the mission, the audit team benefited from the support provided by experts from the Center of Excellence in Auditing of the Government Accountability Office of the United States of America (GAO).

The audit sought to determine the period actually allocated for the resolution of appeals in the field of public procurement, the factors affecting the duration of the appeals resolution process and, as the case may be, the actions that could be taken for the speedy completion of this process.

The analysis of the Court of Accounts revealed that the average duration (27 days) of the appeals resolution process recorded, in general, values in accordance with the regulated deadlines, although this indicator was influenced by the minimum and maximum values of the periods recorded in the realization process.

But in some cases, the process of resolving administrative-jurisdictional appeals in matters of public procurement was affected by delays, reaching a maximum limit of 655 days. The recorded delays were generated by a number of external factors.

Starting from the maximum values recorded, the audit identified the following factors that influenced the process of resolving appeals within the regulated terms:

- late submission of the procurement file by the contracting authorities; for 31% of appeals submitted to the CNSC (out of a total of 9,627 appeals), the contracting authorities sent the copy of the procurement file late. The contracting authorities interviewed reasoned that the delays are usually generated by the limited resources of specialized personnel in the field of public procurement, in relation to the large volume of procurement procedures carried out simultaneously.

- late publication in SEAP of the appeal by the contracting authorities; in some cases, the economic operators submitted requests for intervention within a range of 12-35 days from the date of registration of the appeal at the CNSC. In the situation where the contracting authority does not publish the appeal in the Public Procurement Electronic System (SEAP), the CNSC cannot issue the decision, because it affects the rights of other participants or interested persons, who may intervene in the case.

- appeals formulated in cascade; following the admission of an appeal, the contracting authorities implemented the decision issued by the CNSC in order to avoid a possible contravention sanction. However, situations were identified in which the action to implement the CNSC decision generated other appeals. According to the legal regulations, the management of the file until the issuance of the decision must comply with all procedural steps. Thus, the formulation of appeals in cascade affects, on the domino principle, the activity of the panel, leading to the extension of the deadlines for the resolution of other files due to the large volume of pending cases in a certain period of time. Also, complaints formulated against the CNSC decision were identified, and the reasoning of the court decision regarding the annulment of the CNSC decision was drawn up late and had the effect of exceeding the legal term of 7 days.

In order to improve the process of resolving appeals regarding purchases, the Court of Accounts recommends making the contracting authorities responsible for the submission within the legal term of the documentation necessary for the resolution of appeals, as well as the implementation of a structured program for training and improving the professional training of civil servants and contractual staff with attributions in the field of public procurement.

The Court of Accounts also requires the interconnection and interoperability of SEAP with the CNSC database so that appeals made by economic operators become public from the date of registration with the CNSC. At the same time, the CNSC will be obliged to collaborate with the specialized panels in the field of public procurement, newly established at the level of the Bucharest Court of Appeal - Litigation Section administrative and fiscal and for public procurement, in terms of harmonizing the applicable methodology in the appeals resolution process.