44. Achiziții publice. Limitele dreptului autorității contractante de a stabili criteriile de calificare
44. Public procurement. Limits of the right of the contracting authority to establish the qualification criteria

Summary/Abstract: It follows from the examination of the provisions of Law no. 98/2016, that the duty of preparation of the award procedure rests with the contracting authority. According to Law no. 101/2016, the Council for Settlement of Complaints and the court exercise a full jurisdiction control within which it examines the issues regarding the lawfulness of the administrative acts issued by the contracting authority, as well as the issues related to the opportunity of issue. As such, the contracting authority benefits from a right of assessment as regards the preparation of the tender documentation and the determination of the technical specifications, with the intent to ensure the compliance with the general interests. Nevertheless, the limits within which this right may be exercised are established by the principles underpinning the award of the public procurement contracts, and their breach cannot be justified by the compliance with the public interests. In other words, the judicial bodies may censor the solution adopted by the authority, either when its illegality is the consequence of breach of the general principles of public procurement, or when it is unjustified, as it is adopted with excess of power.

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