Assessing the existence of a conflict of interest in a public procurement procedure; regulation of the conflict of interests through the special legislation on public procurement and through some special normative acts
DEZBATERI
Abstract
Conflicts of interest have become a recurring source of concern, especially in the field of public procurement, in that they lead to non-compliance with the principles of transparency, equal treatment and/or non-discrimination for all economic operators.
In the matter of public procurement, two distinct ex-ante control mechanisms are established, respectively the ex-ante control mechanism exercised by ANAP subject to GEO no. 98/2017 on the ex-ante control function of the process of awarding public procurement contracts/framework agreements, sectorial framework contracts/agreements and works concession and service concession contracts and, respectively, the ex-ante control mechanism - before distinct from the one exercised by ANAP, exercised by NIA in the matter of preventing the conflict of interests in the procedure of awarding the public procurement contracts, subject to Law no. 184/2016.
The contracting authority has the duty to examine all the relevant circumstances which led to the decision on the award of the contract, in order to prevent, identify and remedy conflicts of interest, including, where appropriate, requesting the parties to provide certain information and evidence. The contracting authority has a legal obligation, in the event of a conflict of interest, to take the necessary remedial measures to protect the public procurement procedure and the subsequent public interest, and to remove the circumstances that generated the potential conflict of interest. Therefore, remedies are the measures that should be taken if a conflict of interest or a conflict of interest declared or identified before or during a certain procurement procedure was identified.
Keywords: public procurement; conflict of interests; other personal interest; situations potentially generating conflict of interest; prevention mechanism; integrity warning; ex-ante verification; exclusion of a bidder
