RESTRICTED
GPA/ACC/MDA/22
1 December 2014
(14-6975)  Page: 1/5
Committee on Government Procurement  Original: English
 
ACCESSION OF THE REPUBLIC OF MOLDOVA TO THE  
AGREEMENT ON GOVERNMENT PROCUREMENT 
COMMUNICATION FROM THE UN ITED STATES OF AMERICA 
The following communication, dated 26 November 2014, is being circulated at the request of the 
Delegation of the United States of America.  
 
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UNITED STATES' FOLLOW-UP QUESTIONS ON THE DRAFT LAW TO AMEND THE LAW ON 
PUBLIC PROCUREMENT FROM THE REPUBLIC OF MOLDOVA (GPA/ACC/MDA/15) AND 
THE REPUBLIC OF MOLDOVA'S RESPONSE TO PREVIOUS US QUESTIONS 
(GPA/ACC/MDA/18) 
The United States strongly supports Moldova's accession to the WTO GPA and thanks Moldova for 
the opportunity to comment on Moldova's draft law. Moldova's response to US questions 
(GPA/ACC/MDA/18, dated 25 June 2014) addressed a number of issues. However the United States still has concerns and appreciates the opportunity to submit follow up questions and 
reserves the right to submit additional questions, as appropriate. 
 1. 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. 
 
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  - The "principle of proportionality" is not universally used 
terminology, and we are 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. GPA/ACC/MDA/22 
 
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  2. 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".  
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  - Can Moldova please provide additional information about the 
process of being listed, including opportunities for economic operators to respond to 
proposed listings and to challenge listings? What basis and procedure would an economic operator have to challenge a listing? 
3. 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. 
 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  - We thank Moldova for its offer to amend the draft law. If 
possible we would appreciate an opportunity to see the modified language ensuring 
international standards and EU standards are treated equally. GPA/ACC/MDA/22 
 
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  4. 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  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 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 
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". 
 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  - 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 publicly available online. Additionally can Moldova indicate whether all procurement opportunities above th reshold 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? 
5. 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' reques ts 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  - 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? GPA/ACC/MDA/22 
 
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  6. 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) 
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. 
 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  - 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 functional requirements  rather than design or descriptive 
characteristics. 
7. 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.  
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  - 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 understanding of how "commercial reliability" is different from 
""commercial viability"? GPA/ACC/MDA/22 
 
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  8. 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. 
 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  - 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 
• 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."  
9. 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)? 
 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  - 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. 
 
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