RESTRICTED  
  
GPA/ACC/MDA/16  
 
23 April 2014  
(14-2483)  Page: 1/5  
Committee on Government Procurement  Original: English  
 
 ACCESSION OF THE REPUBLIC OF MOLDOVA TO THE  
AGREEMENT ON GOVERNMENT PROCUREMENT 
COMMUNICATION FROM THE  UNITED STATES 
The following communication, dated 22 April 2014, is being circulated at the request of the 
Delegation of the United States.  
 
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UNITED STATES' QUESTIONS ON THE DRAFT LAW TO AMEND THE LAW ON PUBLIC 
PROCUREMENT FROM THE REPUBLIC OF MOLDOVA (GPA/ACC/MDA/15) 
 
The United States appreciates the Republic of Mo ldova's efforts to accede to the Agreement on 
Government Procurement and thanks Moldova for circulating its draft law to amend the Law on 
public procurement no. 96-XVI of 13 April 2007 ("draft law") (GPA/ACC/MDA/15). The United 
States submits the following questions and reserves  the right to submit additional questions, as 
appropriate.  
 
1.  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. 
 
2.  Article 1(1) of the draft law defines "public 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 establish the scope of the 
draft law's coverage, including that the law appl ies to all public procurement contracts 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 application in terms of the purpose of the procurement. Article 
II.2 of the GPA provides: "For the purposes of  this Agreement, covered procurement means 
procurement for governmental purposes." The draft law appears to define coverage on a different basis, 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. This 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 pr ocurements for governmental purposes.  
 
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  3.  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 disqualified if it fails to supply the additional information requested by the contracting authority 
within the terms set by the latter…." Article 16(5) goes on to state that "the contracting authority 
has the obligation to allow a reasonable time , based on the 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 information" pursuant to Article 16(5) of the draft law would be made in such a way that they 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. 
 
4.  Article 16(7) of the draft law requires that "competent bodies and the bodies in charge of 
defending the law norms shall supply…upon the requ est of the contracting authorities, systematic 
information or any other information about the legal status, involvement or noninvolvement of the 
business operator in criminal organizations or grou ps…." Article VIII.4(d) of the GPA provides that 
suppliers may be excluded from participation on grounds such as "final judgments in respect of serious crimes or other serious offences." While Article 16(7) of the draft law does not state 
explicitly that business operators may be excluded based upon the information supplied by the 
legal authorities, it appears possible that such information, some of which may not be in the nature of a final judgment, may be applied to th e 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. 
 
5.  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 "pri nciple of proportionality" and describe how 
Article 16(9) relates to th e obligations in the GPA. 
 
6.  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 banned 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 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". 
 
7.  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 business operator has the obligation, 
under the sanction of rejection of bid, to reques t from the contracting authority a confirmation of 
approval of [the requested quality] certificatio ns, 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 national technical 
regulations, recognized national standards or bu ilding codes." The stated preference in the draft 
law for European standards suggests that other certifications under international standards may GPA/ACC/MDA/16 
 
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  not be accepted, or more effort might be requir ed 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. 
 
8.  Article 24(1) of the draft law provides that bu siness operators who are on the "List of qualified 
business operators" will be ensured access to pu blic 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 Ag ency, the list is not referenced elsewhere in the 
draft law, and there is no indication of how th e 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 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 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 copy of any regulations approved by the 
government on the "List of qualified business operators".  
 9.  Article 28 of the draft law concerns "drawing up and publication of the invitation to submit 
bids." Article 28(2) of the draft law provides that "[t]he invitation will be published in the state 
language and, as the case may be, in one of the international languages." Article VII.3 of the GPA requires 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. 
 
10.  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 submitted.  GPA Article X.10(c) provides that pr ocuring 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 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.  
 
11.  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 technical characteristics, 
designs, technical drawings, drafts and descrip tions 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 good s, works and services" over "the operational 
qualities of the goods and efficiency of the work s 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 paramete rs prevail." Article X.2(a) of the GPA provides 
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 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 GPA/ACC/MDA/16 
 
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  in terms of performance and functional requir ements, rather than design or descriptive 
characteristics, as provided by Article X.2(a) of the GPA.  
 12.  Article 37(8)(a) of the draft law requires contracting authorities to set out technical 
specifications "by reference, usually in the following order of priority, to the national/European 
standards, national/European technical homologations, international standards or other technical references drawn up by national/European standardization bodies…." Article X.2(b) of the GPA 
provides that procuring entities shall "base [technical specifications] on international standards, 
where such exist; otherwise, on national technica l 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.  
 
13.  Regarding restricted tenders, Article 50(3) of the draft law lists the items that must be 
included in pre-qualification procedure documents. Article IX.4(a) of the GPA provides that, in the case of selective tendering, 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 GP A in the case of selective tendering.  
 14.  Regarding the second stage of the restricted  tender procedure and the competitive dialogue, 
Articles 51(3) and 52(29) of the draft law lists the it ems 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 GPA, 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 qu alified suppliers…" (emphasis added). The lists in 
Article 51(3) and 52(29) of the draft law appear to  not include all of the items 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 Ar ticle IX.4 of the GPA.  
 
15.  Article 53(1) of the draft law describes situations in which contracting authorities may use 
negotiation for public procurement contracts. Paragraph (a) of Article 53(1) identifies incorrect or unacceptable bids, and 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 for 
negotiations and the limited situations in which they may be used. Article 53(1) of the 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.  
 
16.  Article 53 of the draft law sets out the proc edures for the negotiation of public procurement 
contracts. Article XII.2(b) of the GPA provides that a procuring entity shall, "where negotiations 
are concluded, provide 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 provision 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.  
 
17.  Article 54(4) of the draft law provides for th e negotiation of contracts for works and services 
without publication of a participation announcem ent, which appears to be a limited tendering GPA/ACC/MDA/16 
 
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  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.  
 
18.  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 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.  
 19.  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)? 
 
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