Public procurement: What are the confirmation documents issued by the contracting authority and how to contest them?
I. General considerations
In this article, we will address a matter of general interest for economic operators participating in public procurement procedures.
Specifically, we will explain how to contest the confirmation documents issued by the contracting authorities under Article 166 of Government Decision no 395/2016.
For many economic operators, these documents represent almost insurmountable obstacles to the singing of new acquisition contracts, because the authorities are often tempted to exclude from acquisition procedures operators in regard to whom a negative document was previously issued.
It is important to mention at this point that, according to article 167 paragraph (1) letter g) of the Law no. 98/2016, "The contracting authority shall exclude from the procedure for the award of the public acquisition contract/framework agreement any economic operator which is in any of the following situations: g) the economic operator has seriously or repeatedly breached its main obligations under a public acquisition contract, a sectoral acquisition contract or a concession contract concluded previously, and these breaches resulted in the early termination of that contract, the payment of damages or other comparable penalties".
Serious breaches of contractual obligations include, but are not limited to, non-performance of the contract, delivery/performance of products/services presenting major non–conformities, which make them unsuitable for use.
All these aspects are attested by the (negative) documents issued by the contracting authority - documents which, if not suspended and/or cancelled, could lead to the decision to exclude tenderers from the award procedure.
II. The legal nature of the confirmation document
By the Decision No 25/2021 pronounced by the High Court of Cassation and Justice, the following were established: the confirmation document issued by the contracting authority, which contains information on the contractor's failure to fulfil contractual obligations and/or information regarding damages, is a document related to the execution of the public procurement contract.
The determination of the legal nature of the confirmation document is important from two perspectives: (1) in order to establish the obligation to complete the preliminary procedure before contesting the document; (2) in order to determine the competent court for resolving the dispute regarding the confirmation document.
III. Regarding the obligation to complete the preliminary procedure prior to the suspension/cancellation of the confirmation documents
According to article 166 paragraph (4) of GD no. 395/2016, the confirmation documents can be contested according to the Law no 554/2004.
Thus, at a superficial examination, it would appear that the person concerned must follow the preliminary procedure set in article 7 of the Law no 554/2004 and submit a request to the contracting authority to revoke the document.
However, after a detailed analysis, in our opinion, it is not necessary to follow a preliminary procedure, for several reasons.
Firstly, by Decision No 25/2021, the High Court of Cassation and Justice established the following: "it is held that the reference made by the provisions of Article 166 of the Methodological Norms approved by Government Decision No 395/2016 and Article 971 of the Methodological Norms approved by Government Decision No 925/2006 to the provisions of Law No 554/2004 represents a normative mismatch".
In other words, the correct reference is not to the provisions of Law No 554/2004, but to those of Law No 101/2016 - a special and derogatory law. In this regard, according to Article 53 paragraph (7) of Law no. 101/2016, it is not necessary to go through a preliminary procedure.
We highlight that, despite the fact that the provisions of article 53 paragraph (7) of Law 101/2016 seem to exclude the obligation to complete the preliminary procedure only in the case of disputes and claims regarding compensation for damages caused during the award procedure, as well as those concerning the cancellation or nullity of contracts - and not also in the case of those resulting from the performance of contracts, in fact, the intention of the legislator was to eliminate the preliminary procedure even in the case of the last mentioned. In support of this argument, we refer to the Record of the meeting of the Presidents of the Administrative and Tax Litigation Divisions of the High Court of Cassation and Justice and the Courts of Appeal, which took place at the Court of Appeal of Craiova on 17-18 October 2019, where the following was stated:
"We note that neither G.D. no. 925/2006 or G.D. no. 395/2016 states that the confirmation document constitutes an unilateral administrative act, but only that it must be contested according to Law no. 554/2004 (...)
(...) it is not to be considered as determinant in combating the above conclusion that such a confirmation document is issued by a contracting authority in order to be qualified within the meaning of Article 2 paragraph (1)(c) of Law No 554/2004 as an unilateral administrative act, since the document is related to the execution of an administrative contract".
In other words, since the confirmation documents do not represent unilateral administrative acts, but acts issued in the execution of public contracts, it follows that no preliminary procedure needs be followed in respect to them.
Secondly, as indicated above, the cases concerning the establishment documents are cases relating to the execution of a public procurement contract.
According to article 7 para. (6) of Law 554/2004, the preliminary procedure is only required in cases concerning the conclusion or annulment of the contract.
Therefore, even if we (incorrectly) relate to the provisions of Law No 554/2004, we cannot conclude that a preliminary procedure would be required in the case of contesting the confirmation documents.
Of course, even if following such a procedure is not necessary or mandatory, there is nothing to prevent economic operators from submitting a preliminary procedure and requesting the revocation of the confirmation documents, in order to try to obtain a quicker solution from the authority.
IV. Competent court
According to Article 53 para. (11) of Law 101/2016, disputes arising from the execution of administrative contracts (...) shall be trialed in the first instance by the civil court of the district in which the contracting authority has its headquarters or in the district in which the claimant has its registered office/domicile".
Therefore, the jurisdiction relating to the confirmation documents belongs to the civil division of the court, which will judge the case through specialized panels.
Of course, in districts where there are specialized courts, jurisdiction will belong to them. For example, in Cluj, the jurisdiction belongs to Cluj Specialized Court, which will settle the litigation through specialized panels.
V. Remedies relating to the confirmation documents
The economic operators have two remedies available in relation to the confirmation documents: (1) suspension and/or (2) cancellation.
5.1. The suspension of the confirmation documents
The request shall be based on the provisions of Article 53 para. (2) of Law no. 101/2016, according to which: "In duly justified cases and for the prevention of an imminent damage, the court may, until the case is resolved, at the request of the concerned party, suspend the execution of the contract".
The suspension of the confirmation documents is extremely important. Obtaining a suspension decision is equivalent to a temporary invalidation of the document (until the litigation regarding the cancelation of document is completed). In these circumstances, the chances of the economic operator being excluded from future public procurement procedures, even though a (negative) document was issued in advance, become minimal.
Basically, even if the document was issued, it has no effect (it is suspended) and is, in fact, temporarily non-existent.
Thus, obtaining the suspension of the confirmation documents equates to maximizing the chances of being maintained/not being excluded from future public procurement procedures.
5.2. The cancellation of the confirmation documents
The request shall be based on the provisions of Article 53 paragraph 11 of Law No 101/2016 and, respectively, Art. 166 paragraph (4) of Government Decision no. 395/2016.
In the event of the cancellation of the document, it will be retroactively ineffective. In other words, it will be considered that the confirmation document never existed, so that it will no longer be able to justify a solution of exclusion of the economic operator from the public procurement procedure.
In conclusion, it is essential that, if the economic operator receives a negative confirmation document, he acts immediately, by simultaneously submitting requests of suspension and cancellation. In the absence of such requests, the consequences can be drastic – exclusion from other pending public procurement procedures.
Obtaining a court decision suspending the effects of the document is more important since, according to Article 171 paragraph (5) letter b) of Law no. 98/2016, this act can only substantiate a solution of exclusion from public procurement procedures for a period of 3 years from the moment of its issuance.
Of course, the issuance of the confirmation document does not mean automatic exclusion from the procedure. According to article 171 paragraph (1) and (2) of Law no. 98/2016, economic operators to whom such a document was issued have the opportunity to provide evidence that they took sufficient measures to demonstrate their credibility. If the contracting authority declares the evidence submitted to be sufficient, it shall not exclude the economic operator from the procedure.
Thus, in order not to leave the decision on (non)exclusion from the procedure to the discretion of the authority, it is essential to contest the confirmation documents, as mentioned above.
Av. Alexandru Filip