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BaAir» 311 70263829 - 29,0620! ?
EUROPEAN COMMISSION
DIRECTORATE-QENERAL REGIONAL AND URBAN POLICV
The Director-Gonersl
Brossels REG1O E2/LVB/jd
Your Excelîency
Tliaiik you for submilting to us the drafl național framework agreements îo be used for thc implementation of public investments involving infrastructurc as part of the action plan for the fulfilment of the general ex-ante condiționality on Public Procurement. I would like to reiterate the main message that was transmitted io you in thc joinl letter signed by Ms Crețu, Commissioncr for Regional Policy and Ms Bicrikowska, Commissioner for Internai Market, Industry, Entrcprcneurship and SMEs (Ares(2017)2743853).
For a new național contract model to ensure an efficient and smooth management and implementation of investments in infrastructure, including the successful implementation of European Structural and Tnvestment Funds (ESIF), it needs to bc drafted in a clear and consistent rnanner, respect a well-baianced contractual relationship between contractors and contracting authorities, focus on Ihc performance of the contracts and include a fair and transparent arrangement for thc scttlemeni of disputes. The Directorates-General for Regional and Urban Policy (REG1O) and for Internai Market, Indusiry. Entrepreneurship and SMEs (GROW) have jointly assessed the drafts on thc basis of these key requirements and principles. In addition, thc ElB has also contributed to (his assessment with an independent analysis of thc draft contracts: as you know, thc EIB has been assisting your authorities over the past two years in drafting solid and well-baianced standard contracts, which have been widely consulted with relevant stakcholders.
Below you can tind an outline of'our main conceras; a more detailcd analysis follows in the annex to this letter.
First, thc draft contracts presented are not standard contracts as they arc not clcarly differentiating between (i) general conditions applicable to all contracts and which cannot be modified by contracting authorities and (ii) specific aspects which can be adapted to the specifici ty of each contract.
Second, the contracts are generally unbalanced to the detriment of the contractor. In this sense, any failure by the contracting authority to meet its obligalions is not properly addressed and its consequcnces arc not defined; such a failure does in principie not generate a situation in which the contractor can be compensated. Moreover, there are 13
Luminița ODOBESCU
Permanent Representative of România to the European Union
Permanent Representation of Romania to thc European Union
Ruc Montoyer 12
1000 Bruxelles
Commissfon curopeenn&'Eurapese Oommissie 10A9 BruxeHes-'Bnjss©), BELGIOUE/BLLGIL • Tel -32 22991111 htlpZ‘ec-eiiropa.eu/regional_policy/
situations in which Ihe contracting .îuthonty would be entitled io terminate the contract; however. termination by the contractor is noi possiblc.
’l’bird, the draft contracte include a number of provisions that are arbitrary. depending on the goodwil! of the contracting authoritș l-or instance, the contract provtdcs that “the contractor may receive an advancc payment", rathei than providing that the contractor will receive an advancc payment (or that the contractor wiil noi rcccive any advancc payment).. Anmher exampte is the obligation of the contracting authority to provide to the contractor only tho.se anthorisations which have been already obtained, rather than defîning the obligation of the contracting authority to obiain, in a certain timeframe, a number of required authorisations tsuch as the environmental permit. the building permit, etc.).
Finally, the draft contracts tal! short in providing efficient rnechantsms of solvîng dispute*. The only methods provided for solving dispuies are (ii the agreement of the parties and (ii) the Romanian administrative courts. Takiftg into account the current implernentation difl’icukies. the limttations of the twp proposed options are evident. On the oue hand, the agreement of the pârtie^ is extrcmcly difftcuit to reaeh when important antounts of rnoney are at stake. On the other hand, a final and binding eourt dccision unghi require severa! years to be obLamed. Such delays would tncrea.sethe risks of blockages in the implernentation of hSH' co-funded projeets
In eonclusion. the draft standard contracts do noi meci the kcy principles mentioned above and therefore c.mnot eusure in our opinie» ihe effieient management and implernentation of ESIF investments in the infrastructuri sector. I can only reiterate our availability to assist your authorities in any way possibte, including in organising swift peer-to-pcer cooperation with other Member States who have dcvcloped suceessful standard contracts for infrastructura investments. The EIB and JASPERS stand also ready to assist. 1 am strcnglv relving on your cooperation toensure (hat wc tirgently find the best soiution in this matter. including possiblv a bndging soiution as skeîcbed out in the above-mentioned joint lettcr, which will allow the Romanțau authorities to meet their commiîment.s tindei the above mentioned ex ante conditionality.
Yours sirtcerely /
l
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