RESTRICTED
GPA/ACC/MDA/25
5 February 2015
(15-0786)  Page: 1/6
Committee on Government Procurement  Original: English
 
ACCESSION OF THE REPUBLIC OF MOLDOVA TO THE  
AGREEMENT ON GOVERNMENT PROCUREMENT 
COMMUNICATION FROM THE REPUBLIC OF MOLDOVA 
The following communication, dated 5 February 2015,  is being circulated at the request of the 
Delegation of the Republic of Moldova.  
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MOLDOVA'S RESPONSES TO THE US FOLLOW-UP QUESTIONS ON THE DRAFT LAW ON 
PUBLIC PROCUREMENT (GPA/ACC/MDA/22) 
1 
Regarding the follow-up questions and comments fr om the Permanent Mission of the USA to the 
WTO concerning the draft law on public proc urement of the Republic of Moldova (see 
GPA/ACC/MDA/22), in the framework of Moldova’s accession to the Government Procurement 
Agreement of WTO, the Permanent Mission of  the Republic of Moldova communicates the 
following:  
1. Original question from the US (circulated 23 April 2014) - Article 16(9) of the draft 
law states that "[t]he contracting authority has the obligation to comply with the principle of proportionality when determining the qualification and selection criteria…." However, this principle is not defined anywhere in the draft law, and it is unclear what is meant by this phrase or how it 
relates to the obligations in the GPA . 
Please explain the meaning of the phrase "princip le of proportionality" and describe how Article 
16(9) relates to the obligations in the GPA. 
 
Moldova's response (dated 25 June 2014)  - The principle of proportionality is an international 
principle where contracting authorities may require candidates and bidders to meet minimum 
capacity levels of qualification. The breadth of the information and minimum capacity levels 
required for a specific contract must be correlated and must be relatively proportionate to the objective of the contract. At the same time, this principle is also applied in relation to the GPA, as defined in directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 
on the coordination of procedures for the award of  public works contracts, public supply contracts 
and public service contracts.  
US follow-up question (dated 1 December 2014)  - The "principle of proportionality" is 
not universally used terminology, and we ar e unaware of a uniform universal definition. 
It would be useful for Moldova to define the "principle of proportionality" in its law and to 
do so in a way that does not refer back to another country's procurement regulations 
which could be subject to change in the future. 
Moldova's follow-up response  - The proportionality principle is a principle defined in the 
corresponding specialized literature. Therefore,  in the case of Republic of Moldova the 
mentioned principle is not defined in the legal acts, but in the Good Practice Guidance 
elaborated with the support of the European Union. Also, we mention that the draft law 
                                               
1 See also GPA/ACC/MDA16 and GPA/ACC/MDA/18. GPA/ACC/MDA/25 
 
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  on public procurement was adopted by the Repu blic of Moldova’s Parliament in the first 
reading, and taking into account that the proportionality principle has a unique sense in all the countries, including some of the GPA Parties, it will not be possible to interpret this principle otherwise than it is interpreted at the international level. 
2. Original question from the US (circulated 23 April 2014) - Article 18(2)e) of the draft 
law establishes when contracting authorities may exclude business operators from a procurement, including when a bidder is on the "List of banne d business operators." Article 25 of the draft law 
defines this list and who is responsible for creating it. However, the draft law nowhere establishes 
the criteria for placing a business operator  on this list.  
Please explain how and under what criteria a business operator may be placed on the "List of 
banned business operators," and please confirm that  any decisions to exclude a bidder will be 
based on supporting evidence, as required by Arti cle VIII.4 of the GPA. Pl ease provide a copy of 
any regulations approved by the government on the "List of banned business operators". 
 
Moldova's response (dated 25 June 2014)  - The inclusion of the economic operator into the 
List of prohibited economic operators is mandatory, following a contract failure, poor performance of contractual clauses, damage incurred by the contracting authority (additional costs) or negative 
interference in its activity. The procedures for prep aring, updating and record keeping of the List of 
prohibited economic operators are covered in the above mentioned Law on Public Procurement 
no. 96-XVI of 13 April 2007, as well as the Regulati on on preparing, updating and record keeping 
of the List of prohibited economic operators, approved through Government Decision no. 45 of 
24 January 2008. An economic operator can be removed from the mentioned List and admitted for 
participation to public procurement procedures afte r the expiration of a three-year term since its 
inclusion in the list, liquidation of the economic operator, the death of the economic operator 
(physical person) or resolution of an appeal in favour of the economic operator. At the same time 
we must mention that the grounds for inclusion of economic operators in the mentioned list are expressly regulated, respectively, cases of inclusion of various economic agents into the list cannot 
be examined on a case by case basis. 
 
US follow-up questions (dated 1 December 2014)  - Can Moldova please provide 
additional information about the process of being listed, including opportunities for 
economic operators to respond to proposed lis tings and to challenge listings? What basis 
and procedure would an economic operator have to challenge a listing? 
Moldova's follow-up response  - The Law on public procurement nr. 96-XVI of 13 April 
2007 applies by the means of secondary legislative acts subordinated to it. Thus, as in 
the case of the current Law on public procurement nr. 96-XVI of 13 April 2007 is 
foreseen that the way of drafting and ma intaining of the list of banned business 
operators is done in accordance with the Regulation approved by the Government of 
Republic of Moldova nr. 45 of 24 January 2008, the same way for the new draft law on public procurement will be foreseen a similar mechanism. Also we underline that the current Regulation in force foresees the possibility of business operators to challenge the 
listing in two ways, the first by addressing the Public Procurement Agency and the 
second one by addressing the court. 
3. Original question from the US (circulated 23 April 2014) - Article 22(1) of the draft 
law provides that, in evaluating quality assurance standards, the contracting authority "has to 
relate to the quality assurance standards based on the series of relevant European standards…." Article 22(2) of the draft law provides that the contracting authority has the obligation "to accept 
equivalent certificates issued by the bodies estab lished in the other states of the European Union," 
as well as "to accept any other evidence pr oduced by the respective business operator…." 
However, in that case, "the business operator has the obligation, under the sanction of rejection of bid, to request from the contracting authority a conf irmation of approval of [the requested quality] 
certifications, before the deadline for submission of  bids." Article X.2(b) of the GPA provides that 
procuring entities, when setting technical specifications, shall "base [them] on international standards, where such exist; otherwise, on nati onal technical regulations, recognized national 
standards or building codes." The stated prefer ence in the draft law for European standards 
suggests that other certifications under  international standards may not be accepted, or more 
effort might be required to obtain approval by  the business operator, such that the business 
operator would be disadvantaged.  GPA/ACC/MDA/25 
 
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  Please clarify how quality assurance certifications under international, non-European standards will 
be treated.  Moldova's response (dated 25 June 2014)  - The draft will be amended accordingly so that 
operators are entitled to present international certificates alongside with European ones. However, 
considering the current legislative provisions, contracting authorities are obliged to accept international certificates of quality presented by economic operators, if the respective operators do 
not possess the European certifications and can provide proof that the certification was conducted 
by an authorized international organization.  
US follow-up question (dated 1 December 2014)  - We thank Moldova for its offer to 
amend the draft law. If possible we would appr eciate an opportunity to see the modified 
language ensuring international standards and EU standards are treated equally. 
Moldova's follow-up response - On one hand the concepts used in the draft law foresee 
that international standards are the ones adopted by an international standardization 
organization, and the European standards are the ones elaborated by an European standardization body, being thus made the difference, on the other hand the art 22   
par. (2) will be amended before the second reading in the Parliament in order to clarify 
the way of applying the respective standards. 
4. Original question from the US (circulated 23 April 2014) - Article 24(1) of the draft 
law provides that business operators who are on the "List of qualified business operators" will be 
ensured access to public procurement procedur es, and Article 24(3) identifies the agency 
responsible for maintaining the list. Article 24(2) of the draft law indicates that enrolment on the list is not compulsory. Aside from Article 9 of the draft law, which relates to the responsibilities of 
the Public Procurement Agency, the list is not refe renced elsewhere in the draft law, and there is 
no indication of how the list will be used in th e public procurement procedures. Article IX.3 of the 
GPA provides that a party "shall not adopt or apply any registration system or qualification 
procedure with the purpose or the effect of creating unnecessary obstacles to the participation of 
suppliers of another Party in its procurement."  
Please explain how the "List of qualified business op erators" will be used in the public procurement 
procedures, and please clarify how Moldova will ensure that the list will not create "unnecessary 
obstacles to the participation of suppliers of another Party" in Moldova's procurement. Please 
provide a copy of any regulations approved by th e government on the "List of qualified business 
operators". 
 
Moldova's response (dated 25 June 2014)  - The list of qualified economic operators is 
prepared in accordance with the Regulation on pr eparing, updating and record keeping of the List 
of qualified economic operators, approved thro ugh Government Decision no. 78 of 18 February 
2008, the latter being an informative list for the contracting authorities. Operators included in the referred list of participants in procurement procedures however are required to submit all qualification documents as required in the tender documents. The list of qualified economic 
operators can be considered as a database just for information purposes. However, that list is 
intended to facilitate the contracting authorities in identifying available potential bidders which can participate in various procurement procedures. 
 
US follow-up questions (dated 1 December 2014)  - We request that Moldova clarify in 
the law that all information necessary for interested suppliers to be included on the "List 
of qualified business operators" be made pu blicly available online. Additionally can 
Moldova indicate whether all procurement opportunities above threshold will be 
published in the Official Journal of the European Union or are there exceptions when a procuring official could use the "List of qualified business operators" to choose eligible 
suppliers? 
Moldova's follow-up response  - As it was mentioned in the previous reply, the List of 
qualified business operators is drawn exclusively with the aim of ensuring the publicity of 
the economic operators that have an active interest in participating in the public 
procurement. The list of qualified business operators does not favor in any way the business operators included in it. GPA/ACC/MDA/25 
 
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  5. Original question from the US (circulated 23 April 2014) - Article 34(5) of the draft 
law provides that "if the business failed to send the request for clarifications in due time, thus making it impossible for the contracting authority to observe the terms set out under para. (4), the latter has the possibility not to respond." Ar ticle 34(4) of the draft law sets deadlines for 
responding to requests for clarification regarding the public procurement process, in some cases 
up to six (6) days prior to the date by which bids  must be submitted. GPA Article X.10(c) provides 
that procuring entities shall promptly "reply to any reasonable request for relevant information by 
any interested or participating supplier, provided that such information does not give that supplier 
an advantage over other suppliers."   
Please explain how Article 34(5) of the draft law w ill operate. In particular, please confirm that 
contracting authorities will "promptly reply to any reasonable request for relevant information" to 
suppliers' requests for clarification, as required by Article X.10(c) of the GPA. 
 Moldova's response (dated 25 June 2014)  – Art. 34 of paragraph (2) of the draft law 
amending the Law on public procurement No. 96-XVI of 13 April 2007 stipulates the same 
requirements as in Article X.10(c) of the WT O Agreement on Government Procurement, while 
Article 34, paragraph (5) of the draft law amending  the Law on Public Procurement stipulates the 
same requirement, warning operators to transmit requests for clarification in a timely manner to 
avoid exceptions in paragraph (2) thereof.  
US follow-up question (dated 1 December 2014)  - Moldova's draft law uses both 
"calendar days" and "business days" however in Article 34(4) only the term "days" is 
used. Can Moldova clarify if the days in Article 34(4) are calendar days or business days? 
Moldova's follow-up response  - According the Civil Code of the Republic of Moldova,   
art. 260, if there is not stipulated the type of days, then they are to be considered as 
calendar days. At the same time we underline that this issue will be discussed in the framework of the Parliament Committee (to introduce the corresponding amendments) 
before the adoption of the draft law in the second reading. 
6. Original question from the US (circulated 23 April 2014) - Article 37 of the draft law 
sets forth "[r]ules regarding description of the goods, works and services," or, to use the term from Article X of the GPA, "technical specifications." Article 37(3) of the draft law establishes what 
shall be included when "drawing up the technica l characteristics, designs, technical drawings, 
drafts and descriptions requested by the contracting authority." Subparagraphs (a) and (b) of Article 37(3), when read together, appear to sugge st a preference for "physical description of the 
requested goods, works and services" over "the oper ational qualities of the goods and efficiency of 
the works and services." In particular, subparagraph (b) appears to indicate that "operational qualities" are to be "included" only "in case physical description is impossible or the efficiency 
parameters prevail." Article X.2(a) of the GPA prov ides that, in setting out technical specifications, 
procuring entities shall "set out the technical specification in terms of performance and functional requirements, rather than design or descriptive  characteristics…."  
Please clarify whether Article 37(3) of the draft law establishes a preference for "physical 
description" over "operational qualities." Please also confirm that Article 37(3) of the draft law 
permits contracting authorities to set out technical specifications in terms of performance and functional requirements, rather than design or de scriptive characteristics, as provided by Article 
X.2(a) of the GPA. 
 Moldova's response (dated 25 June 2014)  - Physical description is made based on the 
technical characteristics and quality. Contracting authorities can either perform physical 
description based on technical and qualitative ch aracteristics, or, when it is impossible, the 
characteristics of performance qualities are pres ented based on the parameters of efficiency. 
 
US follow-up question (dated 1 December 2014) - The United States remains 
concerned about Article 37(3) in light of the obligations set forth in the GPA in Article X.2(a). Specifically we ask Moldova to clarify in its law that where appropriate procuring 
entities will set out the "technical characteristics, designs, technical drawings, drafts and 
descriptions" in terms of performance and func tional requirements rather than design or 
descriptive characteristics. GPA/ACC/MDA/25 
 
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  Moldova's follow-up response  - The Law on public procurement allows for some 
homogeneous goods the physical description of which cannot differ from one case to 
another, and their performance cannot be described. At the same time, the draft law under the art. 37 foresees expressly at the par. (5), (7) and (8) that the utilitarian 
description is to be made based on their pe rformance and functional requirements and in 
no way based on the physical aspects (design and descriptive characteristics).   
7. Original question from the US (circulated 23 April 2014) - Article 54(4) of the draft 
law provides for the negotiation of contracts for works and services without publication of a 
participation announcement, which appears to be a limited tendering process. Article XIII of the GPA provides that limited tendering may be used in certain circumstances.  
Please identify which provision of Article XIII of the GPA corresponds to each of the situations 
described in Article 54(4) of the draft law. 
 Moldova's response (dated 25 June 2014)  - The provisions of Article XIII of the WTO 
Agreement on Government Procurement, are in line  with the provisions of the draft law amending 
the Law on Public Procurement No. 96-XVI of 13 Ap ril 2007, in the following sequence: Article XIII 
paragraph (1) letter (a) of the Agreement 
→Article 54 paragraph (1) letter (a) of the draft law; 
Article XIII paragraph (1) letter (b) of the Agreement →Article 54 paragraph (1) letter (c); Art. 
XIII paragraph (1) letter (c) →Article 54 paragraph (2) letter (b); Article XIII paragraph (1) letter 
(d)→Article 54 paragraph (1) letter (b); Article XIII paragraph (1) letter (e) →Article 54 paragraph 
(2) letter (c); Article XIII paragraph (1) letter (f) →Article 54 paragraph (2) letter (a); Article XIII 
paragraph (1) letter (g) →Article 54 paragraph (2) letter (d); and Article XIII paragraph (1) letter 
(h)→Article 54 paragraph (3). 
 
US follow-up questions (dated 1 December 25014)  - Article 54(2)(a) uses the term 
"commercial reliability" whereas Article XIII:1(f) of the GPA uses "commercial viability." Can Moldova clarify whether or not the difference is a translation issue? If it is not a 
translation issue, can Moldova explain its und erstanding of how "commercial reliability" 
is different from ""commercial viability"? 
Moldova's follow-up response - Regarding the art. 54 par. (2) (a) we underline that is a 
translation issue, the word “reliability” being replaced with the word “viability”.  
8. Original question from the US (circulated 23 April 2014) - Article 61 of the draft law 
sets out the conditions for submission of bids. Paragraph (6) of Article 61 provides that bids 
received after the expiration of the term for submi ssion will not be opened. Article XV.2 of the GPA 
requires that "[a] procuring entity … not penalize any supplier whose tender is received after the 
time specified for receiving tenders if the delay is due solely to mishandling on the part of the procuring entity."  
Please confirm that Article 61 of th e draft law allows for the opening of late bids when the delay is 
the fault of the contracting authority.  Moldova's response (dated 25 June 2014)  - The place and the date for the submission of bids 
is expressly indicated in the invitation for particip ation, thereby any possible error on behalf of the 
contracting authority is practically excluded. However, in those cases where such a situation arises, the bid submitted with delay cannot be considered timely, and the fault of the contracting 
authority is qualified as a procedural error and, as a result, the procedure is cancelled and is 
repeated so that every economic operator shall bene fit from the right to submit the offer within it. 
 
US follow-up questions (dated 1 December 2014)  - Article XV.2 of the GPA makes 
clear that suppliers should not be penalized for late tenders if the result is due solely to mishandling on the part of the procuring entity. We think it is important that this be reflected in Moldova's law and propose two alternative ways to do so: 
Clarify in Article 67 that the award procedure will be cancelled in cases where "the 
tender is received after the time specified for receiving tenders and the delay is due solely to mishandling on the part of the contracting authority."; or GPA/ACC/MDA/25 
 
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  Modify Article 61.(6) to read "(6) Unless the delay is due solely to mishandling on the 
part of the contracting authority, the bid received by the contracting authority after 
the expiration of the term for submission of  the bids will not be opened and will be 
returned to the business operator who submitted it."  
Moldova's follow-up response - The corresponding comment is to be discussed in the 
framework of the Parliamentary Committee, in order to identify the corresponding mechanism for amending the art. 61 of the draft law and reflect the situation when the 
delay is caused solely by mishandling on the part of the procuring entity.  
9. Original question from the US (circulated 23 April 2014) - Article 66(5) of the  draft 
law provides that a bid may be rejected for an abnormally low price if the bidder benefits from state aid and "the bidder cannot prove…that the state aid was legally  granted." Article XV.6 of the 
GPA provides that, in the event of an abnormally low bid, a procuring entity "may verify with the 
supplier that it satisfies the conditions for participation and  is capable of fulfilling the terms of the 
contract." Article XV.6 of the GPA does not refere nce the granting of state aid, or the legality of  
such aid.   
Please clarify the meaning of "state aid" in Articl e 66(5) of the draft law. Is "state aid" in the 
context of Article 66(5) limited to aid provided by Moldova or its government entities, or would 
"state aid" include aid or subsidies provided by other WTO Members to suppliers in their own 
territory? Under what circumstances would "state aid" be considered not have been "legally granted" for the purpose of Article 66(5)?  
Moldova's response (dated 25 June 2014)  - The provisions of Article 66 of the draft law will be 
applicable to all participants of the public procurement procedures, including economic operators of WTO member countries. The determination of the circumstances concerning the granting of illegal 
state aid will be left in the competence of the legally empowered body. 
 
US follow-up questions (dated 1 December 2014)  - Under Moldova law, what is the 
definition of "state aid" and "state aid legally granted"? Please explain how a contracting 
authority would determine if a low price was the result of state aid. Please indicate how a bidder would prove that the state aid was legally granted? 
However beyond the WTO GPA, Article 66(5) raises broader WTO concerns. Please 
explain how Moldova's policy of determining "state aid" in its procurement practice fits 
within the framework of the Agreement on Subsidies and Countervailing Measures and 
the General Agreement on Tariffs and Trade, Article VI. 
 
Moldova's follow-up response - The contracting authority evaluates the offers and 
identifies the ones with abnormally low prices in comparison with other presented offers, 
after which requests the business operator to justify the low price. In the case of state 
aid, the business operator may present the docu ment issued by the authorized body that 
certifies the offered state aid.  
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