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Challenging the Ascertaining Document – Recent Developments

Challenging the Ascertaining Document – Recent Developments

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A key institution enshrined by the Romanian legal provisions governing public procurement, the ascertaining document is issued by contracting authorities upon the finalization of a public contract and indicates whether contractors failed to fulfill their contractual obligations or have fulfilled them in a defective manner.

The Ascertaining Document’s Role

In practice, when issued a negative ascertaining document (AD), a party may suffer significant consequences. By way of example, relying on such a negative AD published in the Electronic System for Public Procurement and, therefore, available to the public, a contracting authority may exclude the party against which such a document was issued from taking part in a public procurement procedure as a candidate/bidder.

While prior to excluding an economic operator from a public procurement procedure the contracting authority should perform its own review – if the economic operator has seriously or, as applicable, repeatedly infringed its main obligations under the previous public procurement contract, and if the said infringement led to the early termination of that contract or the payment of damages – the risk remains significant.

Against this backdrop, in practice, dissatisfied parties often file challenges against the ascertaining documents, seeking their annulment. To avoid the risk of a negative AD detrimentally impacting their activity while the litigation is ongoing, parties may also submit an application to stay the AD’s effects until the challenge against it is finalized.

Recent Amendments – Intermediary Ascertaining Documents

On March 22, 2022, a government decision (i.e., GD 375/2022) introduced fresh amendments to the Methodological Norms approved by GD 395/2016 and those approved by GD 394/2016.

Notably, the amended provisions expressly enshrine the possibility of the contracting authority to also issue ADs throughout the performance of the contract, specifically every 90 days during the execution of the contract. Such documents should mention at least the stage of the contract and, as the case may be, delays or deficiencies in the implementation of the contract, as well as potential losses generated through the co-contractor’s fault.

Impact

The introduction of such intermediary ascertaining documents may trigger far-reaching consequences on the activity of economic operators, as well as generate an increase in the number of disputes between contracting authorities and operators, even during the early contractual stages. By way of example, a negative intermediary AD may lead to blockages in the activity of an operator, with them being sanctioned in a more drastic way – taking into account the potential repercussions in other tenders – for even minor contractual breaches, e.g., small delays that could have easily been recovered at a later stage during the execution of the contract.

Wary of the risk of being potentially excluded from future public procurement procedures, the party referenced by one or more such intermediary ADs throughout the life of the contract may deem it necessary, and indeed essential, to initiate distinct proceedings challenging each such document. In this scenario, contracting authorities and their contractual partners may become embroiled in prolonged and successive litigations, even as the contractual performance is ongoing, involving extensive efforts and substantial costs.

Multiple practical and legal issues may also arise including, inter alia, joinder of claims, the potential res judicata effects of earlier judgments on subsequent disputes, or the impact of a judgment dismissing a challenge against an AD if corrective measures have subsequently been undertaken.

In the Balance

At this preliminary stage, the long-term effects of the new provisions are difficult to anticipate, and their impact will likely also depend on the scale on which intermediary ADs will be issued throughout the life of the contract.

If the issuance of such documents will become widespread, it may give rise to a wave of new disputes focused on challenging ascertaining documents and a complex debate regarding the interplay between successive intermediary ADs, i.e., the effects of prior judgments issued in challenges against an AD in the context of subsequent disputes.

By Iuliana Iacob, Partner, and Ana Maria Abrudan, Managing Associate, Musat & Asociatii

This Article was originally published in Issue 9.4 of the CEE Legal Matters Magazine. If you would like to receive a hard copy of the magazine, you can subscribe here.

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