COMMISSION IMPLEMENTING DECISION on the partial suspension of the disbursement of the third instalment of the non-repayable support and the third instalment of the loan support for Romania 

lso include a series of “Quick Wins” projects to remove speed restrictions and limitations on the following sections: • Bucharest — Craiova; • Arad — Oradea; • Sibiu — Copșa Mică ; • Oradea — Satu Mare — Halmeu; • Apahida — Dej — Baia Mare — Satu Mare; • Dej — Beclean — Ilva Mica • Adjud — Siculeni; • Filiași — Tg.Jiu — Petroșani — Simeria; • Pitești — Slatina — Craiova; • Coșlariu — Teiuș — Cluj-Napoca; • Tecuci — Bârlad — Vaslui — Iași. EN 4 EN  with TEN-T standards. These contracts entail works being performed for a length of 315 km of railways and were initially costed at EUR 2 303 million. In addition, the requirements of milestone 72 list other types of works, such as electrification, renewal investments or “quick wins” projects. Renewal investments consisting of replacing rail, traverse, broken stone, thus bringing the line to its original speed. These have been costed at EUR 276 million and works cover 263 km. “Quick wins” projects are targeted interventions to remove railways speed restrictions, increase train speed and increase railway safety. They cover a length of 2 163 km and have been initially costed at EUR 452 million. Considering the difference between the types of works covered by the investment, some consisting in very substantial construction or renovation works and others representing targeted interventions on existing railway lines, which by their nature are not comparable to each other, the Commission considers that the fulfilment of the requirement of milestone 72 to provide signed contracts for 50% of the works can only be assessed with regard to the share of the ex ante costs of all works under the investment covered by the works for which the contracts are provided. On this basis and taking into account the evidence submitted by Romania, the contracts provided amount to 64.0391% (i.e. EUR 2 077.43 million) of the total RRF budget of the investment7. (17) To conclude the contracts for the design and execution of Arad – Timișoara – Caransebeş and Cluj-Napoca – Episcopia Bihor railway sections, the contracting authority launched open calls for tenders sequenced in lots, as follows: (i) for Arad – Timișoara – Caransebeş railway section: (1) tender notice CN1031857 for Lot 1 and Lot 2, published in the national Public Procurement Electronic System (SEAP) on 15 June 2021 and in the Official Journal of the European Union (OJEU) on 16 June 2021; (2) tender notice CN1025423 for Lot 3 and Lot 4, published in the national Public Procurement Electronic System (SEAP) on 19 October 2020 and in the Official Journal of the European Union (OJEU) on 20 October 2020; (ii) for Cluj-Napoca – Episcopia Bihor railway section: (3) tender notice CN1038210 for Lot 1 and Lot 2, published in the national Public Procurement Electronic System (SEAP) on 1 January 2022 and in the Official Journal of the European Union (OJEU) on 4 January 2022; (4) tender notice CN1038324 for Lot 3 and Lot 4, published in the national Public Procurement Electronic System (SEAP) on 6 January 2022 and in the Official Journal of the European Union (OJEU) on 7 January 2022. (18) According to the tenders’ notices, all procedures were performed in accordance with Law No. 99/2016 on sectorial procurement8, transposing Directive 2014/25/EU on procurement by entities operating in the water, energy, transport and postal services sectors9, contrary to the Council implementing decision, which requires for the tender process to be carried out in accordance with Law No. 98/2016 on public procurement and its subsequent amendments, transposing Directive 2014/24/EU. The Romanian authorities applied Article 26 of Law No. 98/2016 which sets out that the legal regime established therein is not applicable to sector-specific procurements that are subject to the relevant sector-specific legislation. Therefore, the authorities conducted the 7 The investment’s budget financed by the Recovery and Resilience Facility is EUR 3 244 million, while the total budget including the Member State’s co-funding is EUR 3 934.30 million as reported by the Ministry of Transport. 8 Law No. 99/2016 on sectoral procurement, published in the Official Gazette No. 391 of 23 May 2016, as subsequently amended. 9 Directive 2014/25/EU on procurement by entities operating in the water, energy, transport and postal services sectors and repealing Directive 2004/17/EC, published in Official Journal L 94/243 of 28 March 2014. EN 5 EN  procedure under Law No. 99/2016, which governs sector-specific procurements, including those in the transport sector10. Notwithstanding the fact that Romania used a different legal basis to that required by the milestone, it is additionally noted that Romania has incorrectly carried out this procedure under Law No. 99/2016. (19) First, in line with Article 156 of Law No. 99/2016, which transposes Article 71(1) and (2) of Directive 2014/25/EU, periodic indicative notices, notices on the existence of a qualification system, contract notices, contract award notices, including corrigenda should be transmitted by electronic means to the Publications Office of the European Union and published in compliance with the standard forms. (20) Second, Article 157 of Law No. 99/2016, transposing Article 72(1) of Directive 2014/25/EU, establishes that periodic indicative notices, notices on the existence of a qualification system, contract notices, contract award notices should not be published at national level before the date of their publication in the Official Journal of the European Union. However, publication at the national level is permitted where contracting entities have not been notified by the Publications Office of the European Commission on the publication within 48 hours after confirmation of the receipt of the notice in accordance with Article 71 of the Directive. Furthermore, Article 158 of Law No. 99/2016, transposing Article 72(2) of Directive 2014/25/EU, requires that notices published at national level should not contain information other than that contained in the notices dispatched to the Publications Office of the European Union and indicate the date of dispatch of the notice to the Publications Office of the European Union. (21) In the case of tender notice CN1025423/19.10.2020, 39 corrigenda were published in the national Public Procurement Electronic System (SEAP). The information in these corrigenda were published in a merged format11 in the Official Journal of the EU (OJEU), except for the information in one corrigendum (EN1024956/14.01.2021) concerning the tender notice, which remained unpublished at EU level. Although the corrigendum EN1024956/14.01.2021 was dispatched for publication to the OJEU through SEAP on 11 January 2021, it was rejected from publication. Based on the evidence submitted by the Romanian authorities on 9 July 2024, in reply to the Commission services’ observations letter of 28 June 2024, where clarifications were requested for not publishing the corrigendum in the OJEU, the rejection from publication of the corrigendum in the OJEU was due to its non-compliance with the standard forms required for its publication in the OJEU and was received by the contracting authority on 12 January 2021. The Romanian authorities did not provide further evidence to demonstrate having addressed the issues identified by the OJEU to ensure its publication. Moreover, although the OJEU rejected the publication of this corrigendum, the contracting authority continued with the tender procedure as modified. 10 Point (a) of Article 3(1) of Law No. 99/2016, transposing Directive 2014/25/EU, defines sectorial procurement as the procurement of works, products or services by means of a sectorial contract by contracting entities from economic operators, provided these are intended for carrying out activities such as the provision or operation of networks for public services in the field of rail transport among others, as reflected under Article 8(1) of the Law. 11 2020/S 214-525405 of 3 November 2020; 2020/S 218-536267 of 9 November 2020; 2020/S 241-595126 of 10 December 2020; 2020/S 251-633328 of 24 December 2020; 2021/S 010-020404 of 15 January 2021; 2021/S 013-028943 of 20 January 2021; 2021/S 025-062394 of 05 February 2021; 2021/S 037-093501 of 23 February 2021; 2021/S 061-155726 of 29 March 2021; 2021/S 079-204057 of 23 April 2021; 2021/S 095-249925 of 18 May 2021; 2021/S 117-308421 of 18 June 2021; 2021/S 135-358205 of 15 July 2021; 2021/S 160-421540 of 19 August 2021; 2021/S 176-459564 of 10 September 2021; 2021/S 200-520776 of 14 October 2021; 2021/S 210-549057 of 28 October 2021; 2021/S 228-601490 of 24 November 2021; 2021/S 250-664673 of 24 December 2021; 2022/S 008-016399 of 12 January 2022; 2022/S 012-027763 of 18 January 2022; 2022/S 017- 042061 of 25 January 2022; 2022/S 030-077725 of 11 February 2022. EN 6 EN  Furthermore, given that the national authorities were notified of the rejection for publication in the OJEU in less than 48 hours after the receipt of the notice, the derogation established by Article 72(2) of Directive 2014/25/EU and Article 157(2) of Law No. 99/2016 was not applicable in the present case. (22) Corrigendum EN1024956/14.01.2021, which was published at national level but remained unpublished at EU level, changed the requirements regarding the technical and professional experience to be demonstrated by the winning bidder, by excluding several previously existing requirements (such as, the experience related to design services, expertise and consultancy in metro infrastructure or maintenance and repair work for the remote control and signalling installations). As specified under Article 151 of Law No. 99/2016, the contracting authority is under the obligation to ensure that the transparency requirements are complied with by ensuring publication of all modifications brought to the tender notice both at national and EU level12. The contracting authority therefore failed to ensure that the notice at national level, as modified by the corrigendum, contained the same information as the notice published in the OJEU, in accordance with Article 72(2) of Directive 2014/25/EU and Article 158 of Law No. 99/2016. Furthermore, the contracting authority did not extend the time limit for the submission of tenders by potential interested bidders that would qualify under the new lowered requirements, as provided for by Article 66(3) of Directive 2014/25/EU and Article 163 of Law No. 99/2016. Consequently, no deadline extension was envisaged for potential bidders to submit tenders. (23) The Commission considers that, notwithstanding the fact that Romania used a different procedure to that required by the milestone, by publishing in the SEAP changes concerning the minimum requirements to be demonstrated by the winning bidder that had not been accordingly published in the OJEU, and by not extending the deadline to submit tenders after the modification of the tender specifications, Romania did not fulfil the requirements of the milestone. (24) In its observations of 15 November 2024, regarding the requirement that ‘the tender process shall be carried out in accordance with L98/2016 and its subsequent amendments, which transposed the relevant European Directive 2014/24/EU’, Romania reiterated the arguments and justifications which it had put forward as part of its submissions of 25 January, 4 March, 31 May, 8 July, 9 July and 19 July 2024. Furthermore, in its observations of 15 November 2024, Romania did not provide new evidence that the tender process was carried out in accordance with Law No. 98/2016 and its subsequent amendments, which transposed the relevant European Directive 2014/24/EU (25) First, Romania confirmed that in the case of tender notice CN1025423/19.10.2020 ‘for the Design and execution of works related to the modernization of the railway section Caransebeș – Timișoara – Arad, a number of 39 change notices were published in Electronic Public Procurement System (EPPS). The information was published in the Official Journal of the European Union (OJEU) combined in 24 change notices. From the analysis of the information, it is found that the only one corrigendum EN1024956/14.01.2021 was not published in the Official Journal of the European Union.’ 12 “The contracting entity has the obligation to ensure the transparency of the procedure for awarding sectoral contracts/framework agreements by publishing, in accordance with the provisions of this law, periodic indicative notices, notices of the existence of a qualification system, notices of participation and award notices.” EN 7 EN  (26) Second, Romania argued that although corrigendum EN1024956/14.01.2021 was not published in the OJEU, contrary to what was required by the provisions of both national and EU legislation, ‘the OJUE refusal to publish the change notice EN1024956/14.01.2021 is due to the existence of systemic problems regarding the communication between the two platforms (OJEU and EPPS/SEAP)’. Romania further stated that this systemic issue had been addressed through changes in SEAP, ‘for the remedy of which, in December 2023, changes were made at the platform level by implementing the e-Forms specification’. (27) Third, Romania reiterated that although the corrigendum was not published in the OJEU, the initial tender notice published in the OJEU provided the link to the complete tender documentation from SEAP, which in any case all bidders could and had to consult without any restrictions or additional requirements should they be interested to participate to the tender in order to be able to prepare and submit their bids. Furthermore, the authorities contended that the potential bidders had sufficient time to submit their bids, given that ‘6 offers were submitted and entered into the evaluation’. On this basis, Romania argued that the principles of ‘transparency and equal treatment were in no way violated’. Fourth, Romania stated that according to national legislation, the contracting authority had the obligation to submit the tender-related documentation using solely the national procurement platform, i.e., SEAP, therefore having no control nor responsibility on how the respective information was then taken over and published in the OJEU. According to Romania, the contracting authority complied with its obligations by ensuring the publication of the corrigendum at national level in SEAP. (28) Finally, Romania argued that although corrigendum EN1024956.14.01.2021 remained unpublished in the OJEU, the authorities considered it a minor non-compliance with the requirements of public procurement legislation and ‘cannot be considered as having a significant impact on the implementation of works contracts’, given that in the end contracts were signed with companies from the European market. Furthermore, Romania stressed that the National Agency for Public Procurement issued Unconditional Conformity Approvals for the tender, while the Romanian Court of Auditors concluded in their report that the contracting authority had adhered to the principles of transparency and equal treatment in the awarding of sectoral procurement contracts for the two lots concerned. (29) All aforementioned elements have already been taken into account in the Commission’s preliminary assess