Tasiana Timofticiuc, attorney-at-law
1. Introduction – the Romanian Public Procurement Market
The Romanian public procurement market is currently experiencing a period of intense activity, generating significant opportunities for both local economic operators and international suppliers and contractors attracted by high-value procurement procedures.
Growth is particularly visible in sectors such as healthcare, through hospital infrastructure projects coupled with equipment procurement, as well as in sectors such as IT, energy, infrastructure and public transport.
The size and financial significance of the market are directly reflected in the dynamics of the remedies system, as evidenced by the continuous increase in the volume of challenges brought before the National Council for Solving Complaints (Consiliul Național de Soluționare a Contestațiilor – CNSC)[1].
For economic operators seeking to participate in such procedures, this commercial opportunity is accompanied by a significant challenge: ensuring the compliance of the bid with a procedural framework characterised by a high degree of formalism, short deadlines and strict documentary requirements.
2. Main Risks and Vulnerabilities During the Procurement Procedure
In the field of public procurement, compliance with the principles of transparency and equal treatment requires a high degree of procedural formalisation – contracting authorities must ensure a predictable and non-discriminatory framework, while tenderers must prepare their bids and the related documentation in compliance with the applicable requirements.
In practice, vulnerabilities in a bid do not always concern its technical or financial substance, but frequently arise from the manner in which formal requirements and the various stages of the public procurement procedure are managed.
Issues such as the content of the procurement documents, the structuring of participation, the completion of the European Single Procurement Document (ESPD), the management of requests for clarification and the consistency between the technical proposal and the financial offer demonstrate that a technically and commercially sound bid may nevertheless be rendered vulnerable by issues that are exclusively or predominantly procedural in nature.
2.1. Procurement Documents and the Early Identification of Restrictive Requirements
The first risk arises as early as the commencement of the procedure and concerns the compliance of the procurement documents with the requirements imposed by public procurement legislation.
Restrictive requirements concerning selection criteria and technical specifications are among the main grounds relied upon in challenges brought against procurement documents[2].
A prompt response from tenderers is essential, since failure to challenge unlawful requirements contained in the procurement documents within the statutory deadline may prevent such irregularities from being raised at a later stage.
Accordingly, reviewing the procurement documents constitutes the first filter for identifying and managing procedural risks.
2.2. Completion of the ESPD and Consistency of the Information Declared
The European Single Procurement Document (ESPD) is one of the frequent sources of procedural vulnerability, particularly for international tenderers.
The ESPD must accurately and fully reflect the tenderer’s legal status, compliance with the eligibility criteria and technical and professional capacity, as well as, where applicable, the composition of a consortium, reliance on the capacities of other entities or the proposed subcontracting structure.
Accordingly, the completion of the ESPD should not be treated as a mere formality. The information declared must be consistent with the actual participation structure and with the supporting documents that will subsequently be submitted to demonstrate compliance with the selection requirements.
Even where the selection requirements are substantively met, discrepancies between the information declared in the ESPD and the supporting documents may give rise to significant compliance risks and may affect the admissibility of the tender.
2.3. Participation Structure: Consortia, Reliance on Third-Party Capacity and Subcontracting
The formation of consortia, reliance on the capacities of supporting third parties or subcontracting are arrangements frequently encountered in public procurement practice, as they may provide the flexibility required to meet technical and professional or financial capacity requirements, particularly in procedures concerning large-scale projects or projects involving a high degree of technical specialisation.
However, such structures entail compliance with a significant number of procedural requirements which must be assessed and managed as a whole. The law requires each entity involved to complete its own ESPD, accompanied, as applicable, by the consortium agreement, the binding commitments to make capacities available or the relevant subcontracting agreements. Insufficient legal planning of the participation structure prior to the submission of the bid may therefore create significant vulnerabilities.
Moreover, since subsequent changes to the consortium structure and the replacement of supporting third parties or subcontractors are permitted under Romanian law only in exceptional circumstances and subject to strict conditions, any error in establishing the participation structure may have consequences both during the evaluation stage and subsequently during contract performance.
For economic operators from non-EU third countries, the choice of participation structure is of additional significance. In light of the requirements arising from recent EU case law[3], economic operators from non-EU third countries are reassessing their strategies for accessing the EU public procurement market, turning towards participation structures that may enable them to take part in such procedures, such as joining a consortium led by an EU-based entity or participating as subcontractors.
Accordingly, the participation structure should be established on the basis of an integrated assessment of the selection requirements, the role of each entity involved and the legal implications of the chosen form of participation.
2.4. Responses to Requests for Clarification and the Risk of Modifying the Bid
The clarification stage represents another critical point at which a commercially viable bid may ultimately be rejected as a result of the manner in which responses to requests for clarification are handled.
Under the conditions prescribed by law, contracting authorities are entitled to request clarifications concerning incomplete or unclear documents, as well as explanations in cases involving abnormally low tenders. The purpose of this mechanism is strictly limited, and the tenderer’s response may under no circumstances modify, supplement or improve the initial bid.
The distinction between a permissible clarification of an existing situation and an impermissible modification of the bid may be difficult to draw in practice. For this reason, responses to requests for clarification should be reviewed from both a legal and a technical perspective, in order to avoid introducing information that could be interpreted as a modification of the initial proposal.
At the same time, requests for clarification issued by contracting authorities must comply with the principles of equal treatment and non-discrimination. The manner in which such requests are formulated, their content and their application may, in turn, become relevant from the perspective of the legality of the procurement procedure.
2.5. Consistency Between the Technical Proposal and the Financial Offer
Another major risk frequently encountered in practice is a lack of consistency between the technical proposal and the financial offer, which may raise issues concerning the compliance of the bid and may result in its rejection.
An integrated review of the procurement documents prior to submission may enable the identification of discrepancies between the technical proposal and the financial offer that may be impossible to remedy once the procedure has entered the evaluation stage.
3. Challenges Before the CNSC
Failure by contracting authorities to comply with their obligations under public procurement legislation may require the exercise of the available remedies through the submission of challenges, as a means of restoring legality and protecting the investment made in the tender procedure.
According to data provided by the CNSC[4], in the overwhelming majority of cases in which challenges were upheld, remedial measures were ordered in respect of the procurement procedures, thereby allowing those procedures to continue.
The public procurement remedies system is characterised by a high degree of specialisation and expedition, as well as strict procedural requirements. Short time limits for bringing challenges, formal requirements concerning service and the lodging of security are matters that must be managed carefully, as failure to comply with them may result in the challenge being rejected without an examination of its merits.
The expedited nature of proceedings before the CNSC is also relevant from the perspective of the resources that the tenderer must mobilise, as the swift resolution of a challenge requires the preparation and substantiation of arguments within a short period of time. According to data provided by the National Agency for Public Procurement (ANAP), the average duration of proceedings before the CNSC is approximately 38 days[5].
According to the Council’s 2025 Activity Report[6], more than half of the challenges were rejected by the Council, the grounds for rejection including:
- failure to lodge the security in accordance with the applicable legal requirements;
- the upholding of procedural objections, such as late submission, lack of interest, inadmissibility or the challenge having been brought by a person lacking the requisite standing;
- withdrawal of the challenge by the tenderers;
- the challenges being unfounded or lacking merit.
These figures highlight the importance of an approach that combines an analysis of the substantive issue with a rigorous verification of all applicable procedural requirements. In a system characterised by short deadlines and a high degree of specialisation, the effectiveness of a challenge depends on the ability to rapidly develop a coherent case supported by both legal and technical arguments.
4. Conclusions – Strategies for Securing the Tender
Effective management of a public procurement procedure requires a proactive approach in which prevention and documentary rigour play a central role.
Securing the bid begins with a review of the procurement documents and the earliest possible identification of requirements or procedural mechanisms that may give rise to risks. This includes assessing the participation structure, verifying the consistency of the information contained in the ESPD and the supporting documents, and ensuring consistency between the technical proposal and the financial offer.
The management of requests for clarification is likewise a stage in which legal and technical rigour is essential. Responses must be prepared within a short timeframe, while being reviewed with sufficient rigour to clarify the matters raised without exceeding the limits permitted by the applicable legal framework or modifying the initial bid.
Where it becomes necessary to pursue available remedies, prompt action becomes essential. Managing deadlines, verifying procedural requirements, substantiating the technical and legal arguments, and assessing them against the relevant practice of the CNSC and the courts must form part of a coherent challenge strategy.
Against this background, specialised legal assistance may play a strategic role, not only in the management of a challenge, but throughout the entire procurement process – from the review of the procurement documents and the preparation of the bid to potential remedies and, subsequently, the contract performance stage.
Such an integrated approach makes it possible to identify and manage risks before they develop into procedural issues and contributes to protecting the investment of time and resources made in participating in the public procurement procedure.
[1] CNSC, 2025 Activity Report, p. 20.
[2] CNSC, 2025 Activity Report, p. 31.
[3] CJEU, Judgment of 22 October 2024, Case C-652/22, Kolin Inşaat Turizm Sanayi ve Ticaret AŞ.
[4] CNSC, 2025 Activity Report, p. 58.
[5] ANAP, 2025Activity Report, p. 46.
[6] CNSC, 2025 Activity Report, p. 56.