RESTRICTED  
  
GPA/ACC/MDA/18  
 
25 June 2014  
(14-3652)  Page: 1/7  
Committee on Government Procurement  Original: English  
 
 ACCESSION OF THE REPUBLIC OF MOLDOVA TO THE  
AGREEMENT ON GOVERNMENT PROCUREMENT 
REPLIES FROM THE REPUBLIC OF MOLDOVA TO QUESTIONS FROM THE UNITED STATES 
(GPA/ACC/MDA/16) ON THE DRAFT LAW TO AMEND THE LAW ON PUBLIC 
PROCUREMENT FROM THE REPUBLIC  OF MOLDOVA (GPA/ACC/MDA/15) 
The following communication, dated 24 June 2014, is being circulated at the request of the 
Delegation of the Republic of Moldova. 
 
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 Article 7(2) of the draft law provides that "[i]n case the international treaty 
Republic of Moldova is a party to lays down other norms than the ones provided for by 
this law, the norms of the international treaty shall apply." 
Please confirm that, according to Article 7(2), if any inconsistency were to arise 
between the World Trade Organization Agreement on Government Procurement (GPA) 
and the draft law in a covered procurement, the GPA would apply. 
 In the area of government procurement, the Republic of Moldova is currently negotiating solely on the Government Procurement Agreement within the World Trade Organization. In cases where 
other international agreements are to be negotiat ed, the said agreements will be negotiated in 
such a manner so as not to contravene the WTO Agreement on Government Procurement.  
 Article 1(1) of the draft law defines "pub lic procurement contract" as a contract 
between one or more businesses and one or more "contracting authorities for goods, 
works or services for the purposes of this law." The term "contracting authority" is 
defined in Article 1(4) as "authorities of the public administration, legal entities of 
public law, associations of such authorities or  entities." "Public procurement contract" is 
used in Article 2 of the draft law to esta blish the scope of the draft law's coverage, 
including that the law applies to all publ ic procurement contra cts above a certain 
threshold and also where a legal entity is not a contracting authority where a public 
procurement contract is subsidized more than  50 percent by the contracting authorities.  
The GPA establishes the scope of its appl ication in terms of the purpose of the 
procurement. Article II.2 of the GPA provid es: "For the purposes of this Agreement, 
covered procurement means procurement fo r governmental purposes." The draft law 
appears to define coverage on a different ba sis, including where one of the parties to 
the contract is a "contracting authority" or where a public procurement contract is 
subsidized more than 50 percent by the contracting authorities, rather than where procurement is for governmental purposes. Th is raises a question of whether the draft 
law covers all procurements for governmental purposes. 
 
Please clarify whether the draft law covers all procurements for governmental purposes and, if not, what other laws govern procurements for governmental purposes. 
 
The Law on Public Procurement no. 96-XVI of 13 April 2007 encompasses all aspects concerning government procurement needs, as well as those of the private sector in cases when the 
Government is subsidizing more than 50 percent of the purchase. GPA/ACC/MDA/18 
 
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   Article 16(5) of the draft law provides that "the contracting authority is entitled to 
request clarifications and supplements to documents submitted", and "[t]he 
bidder/candidate may be disquali fied if it fails to supply the additional information 
requested by the contracting authority with in the terms set by the latter…." Article 
1 6 ( 5 )  g o e s  o n  t o  s t a t e  t h a t  " t h e  c o n t r a c t ing authority has the obligation to allow a 
reasonable time, based on th e complexity of the request for clarification." Article 
VIII.3(b) of the GPA states that in assessing  whether a supplier satisfied the conditions 
for participation, a procuring entity "shall base  its evaluation on the conditions that the 
procuring entity has specified in advance in notices or tender documentation." There is a 
question whether requests for "additional info rmation" pursuant to Article 16(5) of the 
draft law would be made in such a way that th ey are "specified in advance in notices or 
tender documentation" as required by the GPA. 
Please confirm that the clarifications and supplements to be requested under Article 
16(5) of the draft law are within the scope of  the conditions specified in advance in the 
notice or tender documentation, as prov ided in Article VIII.3(b) of the GPA. 
 In accordance with Article 16, paragraph (5) of the draft Law, the contracting authority cannot 
request additional documents, but only clarific ations for the already submitted documents by 
economic operators, which is in accordance with the current law as well as the GPA provisions. Standard documentation approved by the Governme nt includes optional documents that need to 
be provided in case the contracting authority deems it appropriate. However the list of all optional 
documents is provided beforehand in the tender invitation, so that any economic operators can get 
to know them.  
 Article 16(7) of the draft law requires th at "competent bodies and the bodies in 
charge of defending the law norms shall su pply…upon the request of the contracting 
authorities, systematic information or an y other information about the legal status, 
involvement or noninvolvement of the busine ss operator in criminal organizations or 
groups…." Article VIII.4(d) of the GPA provid es that suppliers may be excluded from 
participation on grounds such as "final judg ments in respect of serious crimes or other 
serious offences." While Article 16(7) of th e draft law does not state explicitly that 
business operators may be excluded based up on the information supplied by the legal 
authorities, it appears possible that such in formation, some of which may not be in the 
nature of a final judgment, may be applied to  the detriment of the business operator in 
excluding it from the procurement process. 
Please explain how information about criminal activity which is not in the nature of a 
final judgment may be used in evaluating a business operator. 
 
The Constitution of the Republic of Moldova governs the aspect concerning the presumption of innocence, thus an economic operator cannot be accused of any criminal activity if no definitive court order has been issued. 
 
 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 mean t by this phrase or how it relates to the 
obligations in the GPA. 
Please explain the meaning of the phrase "pri nciple of proportionality" and describe how 
Article 16(9) relates to th e obligations in the GPA. 
 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. 
 GPA/ACC/MDA/18 
 
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   Article 18(2)(e) of the draft law estab lishes when contracting authorities may 
exclude business operators from a procurement,  including when a bidder is on the "List 
of banned business operators." Article 25 of the draft law defines this list and who is 
responsible for creating it. However, the dr aft 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 plea se confirm that any decisions to exclude a 
bidder will be based on supporting evidence, as  required by Article VIII.4 of the GPA.  
Please provide a copy of any regulations a pproved by the government on the "List of 
banned business operators".  
The inclusion of the economic operator into th e 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 preparing, updating and record keep ing 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 Regulation 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 after 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. 
  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 established in the other states of the European Union," 
as well as "to accept any other evidence  produced by the respective business 
operator…." However, in that case, "the bu siness operator has the obligation, under the 
sanction of rejection of bid, to request from  the contracting authority a confirmation of 
approval of [the requested quality] certific ations, before the deadline for submission of 
bids." Article X.2(b) of the GPA provides th at procuring entities, when setting technical 
specifications, shall "base [them] on inte rnational standards, where such exist; 
otherwise, on national technical regulations,  recognized national standards or building 
codes." The stated preference in the draf t law for European standards suggests that 
other certifications under international stan dards 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. 
Please clarify how quality a ssurance certifications under international, non-European 
standards will be treated. 
 
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.  
 Article 24(1) of the draft law provides th at business operators who are on the "List 
of qualified business operators" will be  ensured access to public procurement 
procedures, and Article 24(3) identifies the agency responsible for maintaining the list. 
Article 24(2) of the draft law indicates that enrollment 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 referenced  elsewhere in the draft law, and there is 
no indication of how the list will be used in the public procurement procedures. Article 
IX.3 of the GPA provides that a party "shall not adopt or apply any registration system GPA/ACC/MDA/18 
 
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  or qualification procedure with the purpos e 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 busi ness operators" 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 partic ipation of suppliers of another Party" in 
Moldova's procurement. Please provide a co py of any regulations approved by the 
government on the "List of qualified business operators". 
 
The list of qualified economic operators is prepared in accordance with the Regulation on preparing, updating and record keeping of the Li st of qualified economic operators, approved 
through 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.  
 Article 28 of the draft law concerns "drawing up and publication of the invitation to 
submit bids." Article 28(2) of the draft la w provides that "[t]he  invitation will be 
published in the state language and, as th e case may be, in one of the international 
languages." Article VII.3 of the GPA requir es publication of a summary notice of 
intended procurement in one of the WTO languages.  
Please clarify when an invitation will be pu blished in an "international language" and 
which language will be used, and please co nfirm that summary notices of intended 
procurements for covered procurements will be  published in one of the WTO languages. 
 The invitation to submit bids must be published in  the Official Journal of the European Union in one 
of the European languages (English), in the case of contracts whose estimated values without VAT, 
is equal or more than 2.3 million for public procurement of goods and services and 90 million lei for public works contracts.  
 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." Article 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 su bmitted.  GPA Article X.10(c) provides that 
procuring entities shall promptly "reply to any reasonable request for relevant 
information by any interested or participatin g supplier, provided that such information 
does not give that supplier an advantage over other suppliers."  
Please explain how Article 34(5) of the draf t law will operate. In particular, please 
confirm that contracting authorities will "pro mptly reply to any reasonable request for 
relevant information" to suppliers' requests for clarification, as required by Article 
X.10(c) of the GPA. 
 
Art. 34 of paragraph (2) of the draft law amendi ng the Law on public procurement No. 96-XVI of 
13 April 2007 stipulates the same requirements as in Article X.10(c) of the WTO Agreement on 
Government Procurement, while Article 34, paragr aph (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.  
 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 la w establishes what shall be included when 
"drawing up the technical 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 suggest a preference for "physical 
description of the requested goods, works an d services" over "the operational qualities 
of the goods and efficiency of the works an d services." In particular, subparagraph (b) GPA/ACC/MDA/18 
 
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  appears to indicate that "operational qualit ies" are to be "included" only "in case 
physical description is impossible or the effici ency parameters preva il." Article X.2(a) of 
the GPA provides that, in setting out techni cal 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 th e draft law establishes a preference for 
"physical description" over "operational qu alities." 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 requir ements, rather than design or descriptive 
characteristics, as provided by  Article X.2(a) of the GPA. 
 
Physical description is made based on the technical characteristics and quality. Contracting 
authorities can either perform physical description based on technical and qualitative characteristics, or, when it is impossible, the ch aracteristics of performance qualities are presented 
based on the parameters of efficiency. 
  Article 37(8)(a) of the draft law requir es contracting authorities to set out 
technical specifications "by reference, usually  in the following order of priority, to the 
national/European standards, national/Europ ean technical homologations, international 
standards or other technical references draw n up by national/European standardization 
bodies…." Article X.2(b) of the GPA provid es that procuring entities shall "base 
[technical specifications] on international st andards, where such exist; otherwise, on 
national technical regulations, recognized  national standards or building codes."  
Please explain how Article 37(8) (a) of the draft law is expect ed to operate, and please 
confirm that contracting authorities will define  technical specifications consistently with 
the obligations in Article X.2(b) of the GPA.  
As mentioned above in paragraph 7, the draft law will be amended so that economic operators can 
present international certificates along with European ones.   Regarding restricted tenders, Article 50(3)  of the draft law lists the items that 
must be included in pre-qualification proc edure documents. Article IX.4(a) of the GPA 
provides that, in the case of selective tender ing, procuring entities shall "include in the 
notice of intended procurement at least  the information specified in Article VII.2(a), (b), 
(f), (g), (j), (k) and (l) and invite suppliers to submit a request for participation" 
(emphasis added). The list in Article 50(3) of the draft law appears to not include all of the items listed in Article IX.4(a) of the GPA.  
Please confirm that pre-qualification docu ments will contain all of the information 
required by Article IX.4(a) of the GPA in the case of selective tendering. 
 All information concerning the pre-selection documents, regulated by Article IX.4 (a) of the WTO 
Agreement on Government Procurement is containe d within the Annex 3A of the draft Law for the 
amendment of the Law on public procurement no. 96-XVI of 13 April 2007, entitled: The invitation 
for public procurement contracts. 
 
 Regarding the second stage of the restrict ed tender procedure and the competitive 
dialogue, Articles 51(3) and 52(29) of the draf t law lists the items that must be included 
in the invitation to participate in the second stage and in the invitation to submit a final 
bid. In addition to Article IX.4(a) of the GP A, discussed above, Article IX.4(b) of the GPA 
requires procuring entities to "provide, by the commencement of the time-period for tendering, at least  the information in Article VII.2 (c), (d), (e), (h) and (i) to the 
qualified suppliers…" (emphasis added). The lists in Article 51(3) and 52(29) of the 
draft law appear to not include all of the it ems listed in Articles IX.4(a) and (b) of the 
GPA.  
Please confirm that invitations to particip ate in the second stage and invitations to 
submit final bids will contain all of the info rmation required by Arti cle IX.4 of the GPA. 
 GPA/ACC/MDA/18 
 
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  The information in the Article VII.2 letter (c), letter (d) and letter (e) of the WTO Agreement on 
Government Procurement is contained in the documents for call of offers which is regulated by Annex 3A of the draft law. However, the project w ill be completed with additional regulations in 
order to achieve accordance with art. IX4(a) and (b). 
 
 Article 53(1) of the draft law describes si tuations in which contracting authorities 
may use negotiation for public procurement contracts. Paragraph (a) of Article 53(1) 
identifies incorrect or unacceptable bids, an d describes some of the procedures to be 
used in that case, while paragraphs (b), (c ) and (d) identify other special situations. 
Article XII of the GPA sets out procedures fo r negotiations and the limited situations in 
which they may be used. Article 53(1) of th e draft law appears to permit contracting 
authorities to award public procurement contracts through negotiation in situations 
other than those contemplated by Article XII of the GPA. 
Please confirm that contracting authoritie s will award public procurement contracts 
through negotiation only in situations and co nsistent with the requirements of Article 
XII of the GPA.  
The draft law for amending the Law on public procurement no. 96-XVI of 13 April 2007 establishes 
the legal grounds based on which the negotiation procedures are initiated on Article XII of the WTO Agreement on Government Procurement. Theref ore, these provisions are covered in Article 
53 of the draft law, if contracting authorities on one hand publish the invitation in which they 
announce their intention of conducting a negotiation and on the other hand include the criteria and 
assessment requirements in the tender documents that are given to operators upon submitting 
their submission of the tender application. 
 
 Article 53 of the draft law sets out the procedures for the negotiation of public 
procurement contracts. Article X II.2(b) of the GPA provides th at a procuring entity shall, 
"where negotiations are concluded, prov ide a common deadline for the remaining 
participating suppliers to submit any new or revised tenders." Article 53 of the draft law 
does not appear to include any provisio n allowing for new or revised tenders. 
Please confirm that, where a contracting auth ority concludes a negotiation, participating 
suppliers will be given an opportunity to submit new or revised tenders by a common 
deadline, as provided in Ar ticle XII.2(b) of the GPA. 
 
The negotiation procedure regulated by the draft la w provides three stages of progress. During the 
first stage the pre-selection takes place based on the qualification documents. At the second stage, an invitation to the short-listed economic operat ors is sent out, asking them to submit their 
preliminary bids, as a basis for negotiations. Du ring the third and final stage, the economic 
operators submit their final offers within two days after the final meeting. Thus, all economic operators involved in the negotiations shall submit their final offer within two days of the final negotiation, a fact which is to be included into the minutes of the final negotiation. The detailed 
procedure for negotiations is regulated by the Regulation on the negotiation on government 
procurement, using the negotiated procedure approved by Government Decision no. 794 of 
8 October 2013. 
 
 Article 54(4) of the draft law provides fo r the negotiation of contracts for works 
and services without publication of a partic ipation 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. 
 
The provisions of Article XIII of the WTO Agreemen t on Government Procurement, are in line with 
the provisions of the draft law amending th e Law on Public Procurement No. 96-XVI of 
13 April 2007, in the following sequence: Ar ticle 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 GPA/ACC/MDA/18 
 
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  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). 
  Article 61 of the draft law sets out the cond itions for submission of bids. Paragraph 
(6) of Article 61 provides that bids receiv ed after the expiration of the term for 
submission 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 the draft la w allows for the opening of late bids when 
the delay is the fault of the contracting authority. 
 
The place and the date for the submission of bids  is expressly indicated in the invitation for 
participation, 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 benefit from the right to submit the offer within it. 
 
 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 reference the granting of state aid, or the legality of such aid.  
Please clarify the meaning of "state aid" in Ar ticle 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 wh at circumstances would "state aid" be 
considered not have been "legally granted" for the purpose of Article 66(5)?  
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. 
 
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