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 

s linked to long-term financial sustainability (KPI relevant to the profile of each company) and performance of the service provided (e.g. on the basis of a customer satisfaction survey) by each company); - in compliance with good governance principles in line with the reform on State- Owned-Enterprises amending Law 111/2016’, Romania stated that “[the] Ministry of Transport and Infrastructure, with the assistance of [the] Agency for Monitoring and 20 On 27 September 2024, Romania informed the Commission of the board member’s intention to resign from C.N.I.R.’s board as from 1 November 2024. EN 12 EN  Evaluation of State Owned Enterprises Performance – AMEPIP, will initiate a new procedure for the selection and appointment of the members of the board of directors for the following state owned enterprises: C.N.A.I.R., C.N.I.R., C.F.R., Metrorex, C.F.R. Calatori. Thus, according to the reform on state enterprises in force at this moment, AMEPIP will select the independent expert and the following steps will be completed within the indicative deadlines mentioned in the supporting documents, which also include the decisions of the General stakeholder assembly and the correspondence initiated with AMEPIP on this matter”. Furthermore, in its observations of 15 November 2024, Romania did not provide new evidence that the selection and appointment of members of the Board of Directors of State-Owned Enterprises in the transport sector (C.N.A.I.R., C.N.I.R, C.F.R., Metrorex, C.F.R. Călători) was made on the basis of a transparent and competitive procedure, with a duration of the mandate of four years to ensure that medium and long-term efficiency plans are implemented, with remuneration of board members based on KPIs linked to long-term financial sustainability and performance of the service provided, in compliance with good governance principles in line with the reform on State-Owned-Enterprises amending Law 111/2016. (47) With its observations of 15 November 2024, Romania submitted to the Commission MTI’s letter informing the Agency for Monitoring and Evaluation of State-Owned Enterprises Performance (Agenția pentru Monitorizarea și Evaluarea Performanțelor Întreprinderilor Publice, “AMEPIP”)21 of its intention to launch the selection procedures, as well as the decisions of the General Assembly of the SOEs to launch the recruitments.22 To date, Romania has not provided to the Commission evidence that these procedures have been completed and that the new board members have been appointed. (48) Furthermore, Romania did not provide the Commission with the signed addenda to the mandates setting out the KPIs for the C.N.I.R. board, nor further information that would clarify when the addenda are to be signed. (49) Therefore, the Commission maintains the assessment and considers that the selection of MTI management by selection committees including members with a clear hierarchical link to the candidates, allowing members of the NRC of a company to participate as candidates in the selection procedure and be appointed as board members of the same company, not filling vacant board positions and not approving KPIs for newly appointed boards, as well as appointing high-level political figures to SOEs’ boards is contrary to the requirements of milestone 79. (50) On the basis of the information provided, the Commission concludes that the following requirements of milestone 79 cannot be considered satisfactorily fulfilled: “The selection and appointment of members of the Board of Directors of State-Owned Enterprises in the transport sector (C.N.A.I.R., C.N.I.R, C.F.R., Metrorex, C.F.R. Călători) shall be made: – on the basis of a transparent and competitive procedure; 21 Letter of MTI dated 28 October 2024. 22 Decision of the General Assembly of C.N.I.R. No. 21 of 24 October 2024, decision of the General Assembly of Metrorex No. 1332 of 25 October 2024, decision of the General Assembly of C.F.R. Călători No. 23 of 25 October 2024 and decision of the General Assembly of C.N.A.I.R. No. 14 of 25 October 2024. EN 13 EN  – with a duration of the mandate of 4 years to ensure that medium and long-term efficiency plans are implemented; – with remuneration of board members based on KPIs linked to long-term financial sustainability (KPI relevant to the profile of each company) and performance of the service provided (e.g., on the basis of a customer satisfaction survey) by each company; – in compliance with good governance principles in line with the reform on State- Owned-Enterprises amending Law 111/2016.” (51) Regarding milestone 86, measure C4.I4 is entitled “Development of the underground transport network in the municipalities of Bucharest and Cluj-Napoca” and its description requires that: “The objective of this investment is to extend the underground transport network in the municipality of Bucharest by 6,6 kilometres, and to build 8,8 kilometres of underground transport network in Cluj-Napoca. The projects shall contribute to increasing the use of clean public transport, thereby reducing air pollution, emissions and congestion in these urban areas. The investment shall include facilities for persons with reduced mobility and shall be accessible to visually impaired persons. The implementation of the investment shall be completed by 30 June 2026.” (52) Milestone 86 of the Council Implementing Decision, which pertains to measure C4.R4, requires that: “The contracts between the Ministry of Transport/City-Hall of Cluj-Napoca and the winning companies to be signed, following open and competitive tender, for the procurement of 50% of the works of new metro lines in Bucharest and Cluj-Napoca, as follows: – M6 Bucharest: section 1 May – Tokyo (6 stations), length 6.6 km; – M1 Cluj-Napoca: Țara Moților (Teilor) – Sf. Maria (Câmpului) (7 stations), length 8.8 km. The works included in this investment are: structural resistance work stations, interstations, tunnels, galleries, other constructions . The tender process shall be carried out in accordance with Law 98/2016 and its subsequent amendments, which transposed Directive 2014/24/EU. The technical specifications of the tender must fully incorporate any result and condition resulting from the Environmental Impact Assessment, if needed.” The fulfilment of the milestone is subject to the “Signature of contracts.” (53) Romania has not provided the Commission with due justification that this milestone has been satisfactorily fulfilled. (54) On 25 January 2024, Romania provided to the Commission the signed contract concluded by Cluj-Napoca Municipality (hereinafter “the contracting authority”) for the design and construction of the Cluj-Napoca Metro Line 1, which represents more than 50% of the works of the new metro lines in Bucharest and Cluj-Napoca, as required by the milestone. EN 14 EN  (55) The contracting authority launched an open call for tenders by notice published in the national Public Procurement Electronic System (SEAP) on 16 March 2022 and in the Official Journal of the European Union (OJEU) on 18 March 2022, to conclude a public contract for the design and construction of Cluj Metro Line 1. The estimated value of the contract set out in the notice was RON 6 665 384 306 and the deadline for submitting tenders was 9 May 2022. This deadline was subsequently extended five times until 28 October 2022 and the contract with the successful tenderer was signed on 22 May 2023. (56) In total, nine corrigenda to the contract notice were published in SEAP, of which only five – those extending the deadline to submit offers - were published in the OJEU. The four corrigenda, which were not published in the OJEU, concerned: – on 30 March 2022, removal of a requirement related to the technical and professional experience of the bidders23 and a clarification concerning the supporting documents to be submitted by the bidders, – on 21 April 2022, introduction of an additional deadline to request clarifications concerning the tender documentation, – on 15 May 2022, correction of a clerical error, and – on 16 October 2022, increase of the estimated contract value from RON 6 665 384 306 to RON 9 064 456 067. (57) As concerns particularly the increase of the estimated contract value, on 22 August 2022 the contracting authority used a specific functionality in SEAP to suspend the procurement procedure pending the approval by Government Decision No. 1245 of 12 October 2022 of the revised estimated contract value. The procedure was subsequently resumed on 14 October 2022. (58) The four corrigenda mentioned above were sent to SEAP (the certified e-sender at national level), which in turn submitted them to the OJEU for publication. Their publication was however rejected by the OJEU, as in all four cases the standard form for corrigenda had not been filled out correctly. The OJEU sent separate notifications to that effect to the contracting authority for the four corrigenda, asking it to make the required changes and “cancel publication at national level, if necessary.” (59) Articles 153, 147 and 148 of Law No. 98/2016 on public procurement24 transposing Articles 47(3), 52(1), 52(2) of Directive 2014/24/EU on public procurement25 contain provisions regulating the modifications of tender documents and the resulting extensions of the deadline for submission of tenders, as well as the scope and timing of publication of such modifications at national and EU level. These provisions aim to ensure that all potential interested tenderers are treated equally and without discrimination and are provided with sufficient information to decide if they fulfil the minimum requirements and have the capacity to provide the service put out to tender. (60) First, in line with Article 153(1)(b) of Law No. 98/2016 transposing Article 47(3)(b) of Directive 2014/24/EU, contracting authorities must extend the deadline for the submission of tenders where significant changes are made to the procurement 23 Removal of the following condition: “with the condition that at least one contract concerned the execution of underground structures with a volume of 36,000 m³ or more of underground excavations”. 24 Law No. 98/2016 on public procurement, published in the Official Gazette No. 390 of 23 May 2016, as subsequently amended. 25 Directive 2014/24/EU on public procurement and repealing Directive 2004/18/EC, published in Official Journal L 94 of 28 March 2014. EN 15 EN  documents. The length of the extension should be proportionate to the significance of those changes. (61) In addition, Article 55(2) of Government Decision No. 395/2016 on the rules for implementing Law No. 98/201626 lays down that substantial modifications to published notices should result in the cancellation of the procedure where the modifications affect the tender conditions to such extent that they result in changes to the main indicators of the contract to be awarded, which affect competition for the contract. (62) In its preliminary assessment, the Commission noted that, in this case, except for the correction of a clerical error, the modifications to the contract notice that were not published in the OJEU were significant changes to the tender conditions, which were liable to affect the potential tenderers’ decision to participate in the tender. (63) Therefore, the Commission considered that, in order to ensure compliance with the requirement of the milestone, the contracting authority should have ensured publication of these modifications in the OJEU by means of corrigenda to the tender notice and at the same time extended the time limit for the submission of tenders, as required by Article 153(1)(b) of Law No. 98/2016 transposing Article 47(3)(b) of Directive 2014/24/EU. However, in this case the deadline extensions predated the increase in contract value and no additional extension of the deadline to submit tenders was granted afterwards. (64) Furthermore, given the nature of the modifications to the tender notice (most notably the significant increase in the contract value and the modification of the minimum requirements for the bidders) and the timing of some of these modifications (the contract value was increased by over 30% on 16 October 2022, less than two weeks before the deadline to submit tenders), the Commission considered that the contracting authority should have cancelled the procedure and launched a new tender based on the revised conditions, in accordance with Article 55 of Government Decision No. 395/2016 on the rules for implementing Law No. 98/2016. In addition, as explained above, the OJEU’s reply upon receipt of the corrigenda includes a standard request to either make the required corrections or “cancel publication at national level, if necessary.” (65) However, the Commission noted that, rather than re-launching the tender, the contracting authority used the “suspension” procedure to provide for sufficient time for the revision of the estimated contract value. This procedure is regulated at national level by Articles 22 and 23 of Law No. 101/2016 on remedies and appeals in award procedures for public procurement contracts27, transposing Directive 89/665/EEC, as subsequently amended.28 In line with Article 22 of Law No. 101/2016, the National Council for the Resolution of Appeals may decide to suspend a tender procedure upon 26 Government Decision No. 395/2016 on the rules for implementing the provisions concerning the award of public contracts in Law No. 98/2016, published in the Official Gazette No. 423 of 6 June 2016, as subsequently amended. 27 Law No. 101/2016 on remedies and review procedures in the field of the award of public procurement contracts, utilities contracts and works and services concession contracts, as well as for the organisation and functioning of the National Council for Solving Complaints, published in the Official Gazette No. 393 of 23 May 2016. 28 Council Directive of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts (89/665/EEC), published in the Official Journal L 395 of 30 December 1989. The directive was amended by Directive 2007/66/EC of the European Parliament and of the Council of 11 December 2007 amending Council Directives 89/665/EEC and 92/13/EEC with regard to improving the effectiveness of review procedures concerning the award of public contracts, published in Official Journal L 335 of 20 December 2007. EN 16 EN  request by an interested party “in duly justified cases and for the prevention of imminent damages” within three days from the receipt of an appeal by an interested party and until such appeal has been resolved. Romania confirmed that no appeal within the meaning of Law No. 101/2016 had been received in this case, therefore the contracting authority should not have used this p