Eugen Sarbu, Partner at Sarbu Partners, participated as a speaker at the debate organised by Juridice.ro – “The New Era of Public Procurement: What Changes, What Remains”, a live-streamed event dedicated to analysing the current state of public procurement.
The presentation focused on the legal and contractual implications of Emergency Ordinance No. 41/2025, a regulation with significant impact on the construction sector and public investments, including projects financed through the NRRP and national development programs. This ordinance introduces rules that fundamentally change the way public procurement contracts are carried out and raises essential questions for contractors, contracting authorities, and their contractual partners.
During his intervention, Eugen Sarbu highlighted the key changes brought by the new legal framework and the risks it generates, with a focus on practical aspects such as:
Suspension of contracts and the 30% threshold
One of the most sensitive issues regulated by Emergency Ordinance No. 41/2025 concerns the suspension of contracts with a progress rate below 30%, while projects with a higher degree of completion may continue only if the works can be finalised by 31 August 2026.
This measure raises major concerns for contractors, subcontractors, and suppliers:
- uncertainty regarding the resumption of contracts;
- disruptions in the supply chain;
- lack of financial predictability for construction companies.
Impact on NRRP funding
The economic context is all the more complex as Emergency Ordinance No. 41/2025 directly affects projects financed from both external and national sources:
- approximately EUR 20 billion from the NRRP;
- over EUR 10 billion from national funds.
In the absence of clear mechanisms for resuming works, the construction sector faces increased risks of insolvency and contractual disputes.
Legal risks and contractual obligations during suspension
Emergency Ordinance No. 41/2025 generates multiple legal challenges for contractors, including:
- Claims – failure to submit notifications within 30 days results in the loss of the right to request additional costs or extensions of time;
- Direct and indirect costs – demobilisation and remobilisation of construction sites, material degradation, unrealised profit;
- Obligation to maintain and safeguard the site during suspension – costs borne by the contractor without the guarantee of recovery;
- Contractual guarantees – where performance guarantees are constituted through successive withholdings from invoices, contractors face blocked funds and the need to extend guarantee instruments.
In this context, it becomes essential to carefully document the status of works at the time of suspension, in order to prevent disputes related to contract execution, work degradation, or the justification of already collected amounts.
Recommendations for contractors
In the face of this uncertain context, it is crucial for economic operators to adopt a proactive legal strategy:
- submitting claims notifications within the contractual deadlines;
- negotiating and formalising written instructions regarding obligations during suspension;
- verifying and recording the actual status of works;
- budgeting for potential litigation costs and arbitration proceedings;
- reviewing contractual relationships with subcontractors and suppliers to limit exposure to legal actions.
Recovery of outstanding payments – a solution for generating revenue during the suspension period
Against the backdrop of suspended contracts, a significant increase in litigation and arbitration is expected.
Many companies are likely to initiate legal proceedings to:
- recover amounts already due and overdue;
- contest rejected claims;
- obtain payment for works performed but not yet paid.
These steps are necessary to secure cash flow and mitigate the impact of suspension periods.
At the same time, there is a risk of actions brought by subcontractors and suppliers who are not protected by pay-when-paid or pay-if-paid clauses, which may further strain contractual chains.
Conclusions
Emergency Ordinance No. 41/2025 marks a turning point for the public procurement market, bringing substantial legal and contractual challenges for contractors and their partners.
Our expertise in construction law and public procurement enables us to assist affected companies in managing contractual risks, structuring claims, and preparing for potential litigation or arbitration.
For more details on the legal implications of Emergency Ordinance No. 41/2025 or for project-specific advice, the Sarbu Partners team is here to support you in navigating these challenges.
