The principle of transparency is essential in public procurement, ensuring the proper use of public funds, citizens’ access to quality services, and the maintenance of a fair, competitive environment in the private market. The CJEU case law emphasises that transparency prevents arbitrariness by contracting authorities, requiring them to provide clear and complete information to economic operators. Law no. 98/2016 and CNSC practice establish the obligation of authorities to publish the tender documentation, respond to requests for clarifications, and define qualification and award criteria clearly and fairly. Moreover, transparency involves communicating the decisions of the procedure and respecting the legal deadlines for contract signing, to ensure equal treatment and legality in the conduct of public procurement procedures.
Transparency – a cornerstone of public procurement
Transparency constitutes one of the essential foundations of the public procurement system, serving as a guarantee of integrity in the use of public funds, citizens’ access to quality services, and the maintenance of a fair competitive climate in the private sector.
CJEU case law and the elimination of arbitrariness
The consistent case law of the Court of Justice of the European Union underlines that the primary purpose of the transparency principle is to eliminate the risk of arbitrariness by contracting authorities. Consequently, these authorities are required to act transparently and provide all interested economic operators with a genuine opportunity to participate in procurement procedures.
Publicity and transparency rules in Law no. 98/2016
To give effect to this principle, Law no. 98/2016, in Section 3 of Chapter IV, establishes detailed publicity and transparency rules applicable to the organisation and conduct of award procedures. These include the publication of notices of intention, participation, and award, as well as the associated documentation, in accordance with Articles 142–153 of Law no. 98/2016. These provisions are complemented by other obligations derived from the overall public procurement framework and judicial practice, all aiming to guarantee compliance with the transparency principle.
The right of economic operators to request clarifications
Thus, Law no. 98/2016 enshrines the right of any economic operator to request clarifications or additional information regarding the tender documentation. Correspondingly, the contracting authority is required to provide clear and complete responses, which must be published along with the submitted questions, ensuring the confidentiality of the requester’s identity.
CNSC practice regarding tender documentation
In the practice of the National Council for Solving Complaints, it has been consistently held that the contracting authority must prepare the tender documentation in a transparent manner, providing economic operators with all the necessary information for preparing their bids. Additionally, in the case of clarification requests, responses must be unequivocal, eliminating any uncertainty. Only in this way can the risk of subjective interpretations during the bid evaluation phase be avoided.
Clarity and fairness of qualification and award criteria
The application of the transparency principle also requires the contracting authority to define qualification and award criteria in a clear, fair, and verifiable manner. It is prohibited to introduce criteria that may create undue advantages or lead to arbitrary evaluations. Once established, these criteria must be strictly adhered to in accordance with the law.
CJEU case law on supplementing documentation
In this regard, the Court of Justice of the European Union has ruled that “the principles of proportionality and transparency must be interpreted as opposing the automatic supplementation of procurement documents with qualification criteria arising from special regulations applicable to activities related to the contract to be awarded, which were not provided for in these documents and which the contracting authority did not intend to impose on the economic operators in question.”
Council’s position on bid rejection
Similarly, the Council has stated that the transparency obligation prohibits rejecting a bid that complies with the requirements of the documentation for reasons not explicitly provided therein. Even when contract execution requires specific licenses or personnel qualifications, the contracting authority must explicitly request such evidence at the bid submission stage. Otherwise, the winning bidder must comply with these requirements during contract execution, not at the time of bidding.
Clarifications allowed during evaluation
Procurement legislation allows contracting authorities to request clarifications from bidders during the evaluation process. However, these clarifications may only concern minor errors, material omissions, or formal aspects, and cannot lead to substantial modification or supplementation of the bid. Any deviation from this limit would constitute a breach of the transparency and equal treatment principles, resulting in the bid being rejected as unacceptable.
Communication of the procedure outcome
Another aspect of the transparency obligation is the communication of the award procedure outcome. The contracting authority must send the decision both to the winning bidder and to those rejected, within 3 days from the issuance of the final report. Communication to the winner will include the acceptance of the bid and agreement on concluding the public procurement contract or framework agreement.
Deadlines for issuing the final report
The final report of the procedure must be issued within the legally determined timeframe, which varies depending on the type of procedure:
- 60 days from the bid submission deadline, for open procedures, restricted procedures, innovation partnerships, and solution contests;
- 20 days for simplified procedures and negotiated procedures without prior publication;
- 100 days for competitive dialogues and competitive negotiated procedures.
Notification of rejection reasons
Furthermore, the transparency principle requires notifying the specific reasons that led to the rejection of non-compliant bids. This communication must generally be sent electronically, and in exceptional cases, by other legally provided means.
Waiting period for contract signing
Finally, the contracting authority is obliged to respect the legal waiting period before signing the public procurement contract. According to Law no. 101/2016, this period is at least 11 days from the date of sending the award decision to interested parties if the estimated value exceeds the thresholds of Article 7 of Law no. 98/2016, or 8 days if the value is below these thresholds. Failure to comply with this period entails severe sanctions, including the nullity of the contract.
Conclusion
Respecting the principle of transparency in public procurement is essential to prevent arbitrariness, ensure equal treatment, and protect the public interest. Contracting authorities must provide economic operators with complete and clear information, respond to clarification requests, and respect legal procedures and deadlines so that the award process is fair, equitable, and predictable.