Exclusion from the Procedure for the Award of the Public Procurement Contracts of the Candidate/Tenderer Convicted/Investigated for Committing an Offence

• Author: Angelica Rosu
• Position: Associate Professor, PhD, Danubius University of Galati, Romania
• Pages: 24-37

ACTA UNIVERSITATIS DANUBIUS Vol. 13, no. 3/2017

24

Exclusion from the Procedure for the

Award of the Public Procurement Contracts

of the Candidate/Tenderer

Convicted/Investigated for Committing an

Offence

Angelica Rosu

1

Abstract: Law no. 98/2016 on public procurement provides in Chapter IV entitled Organization and

conduct of the award procedure - S ection 6 Qualification and selection criteria – the grounds for the

exclusion of the candidate tenderer (paragraph 2). Some of these grounds may be found in the old

regulation, but others take into consideration legal situations not covered by the old legislator as a

basis for exclusion. These situations have already generated different ways of interpretation in

practice, a circumstance that justifies the opportunity and usefulness of this approach. It should be

noted that not all the reasons for exclusion shall be subject of th is analysis; the content of Paragraph 2

of Section 6 of Law 98/2016 takes into account only the reasons relating to the commission or the

alleged commission by the economic operator involved in the procedure of an offense belonging to

those expressly mentioned in Art. 164 par. (1) letters a) - g).

Keywords: public procurement; grounds for exclusion; investigation judicial procedure;

foreseeability of the law; presumption of innocence

Regulation. Cases. Rule of Exclusion. Exceptions

Referring to the content of art. 164 and art. 167 of Law 98/2016

2

, we find that the

legislator regulated the grounds for exclusion for the purpose of determining the

1

Associate Professor, PhD, Danubius University of Galaţi, Romania, Address: 3 Galati Blvd., Galati

800654, Romania, Tel.: +40372361102, Corresponding author: rosuangelica@univ-danubius.ro.

2

Published in the Official Gazette No. 390 of 23 May 2016, as amended on 28 June 2017, (Official

Gazette 492 of 28 June 2 017). The law transposes the Directive 2014/24/EU on public procurement

into the national legislation and repeals the Directive 2004/18/EC. The la w is part of a legislative

package transposing the new European legislation in the field of public procurement, which includes

along with this normative act and Law no. 99/2016 on sectorial acquisitions (Law No 99/2016), Law

no. 100/2016 on concession of works and concession of services, as well as Law no. 101/2016 on

remedies and appeals concerning the award of pu blic procurement contracts, sectorial contracts and

concession contracts, and for the organization and functioning of the National Council for Solving

Complaints, normative acts that have replaced the legislative framework of public procurement.

AUDJ, vol. 13, no. 3/2017, pp. 24- 37