Țuca Zbârcea & Asociații major contribution to the amendment of Romania’s PPP and concession laws

Government Decision No. 1116/16 November 2023 was published in Official Journal of Romania No. 1058/23 November 2023, amending and supplementing the Government Decision No. 907/2016 on the elaboration stages and framework content of the technical and economic documentation related to publicly funded investment objectives/projects (“GD No. 907/2016”).

This normative act was adopted as a result of an intense and long-term collaboration between the Romanian Government (in particular, the General Secretariat of the Government, the Ministry of Finance, the Ministry of Development, Public Works and Administration, the Ministry of Transport and Infrastructure) and International Finance Corporation. The objective of amending the Government Decision was to align the content of the pre-feasibility and feasibility studies for public-private partnerships and concessions to European and international best practice, namely enabling the opportunity to tap into the know-how and innovation brought in by the private partner into the project.

Essentially, a new section regulating the framework content of the technical and economic documentation for investment objectives carried out as public-private partnerships or works concessions or service concessions was included in Chapter III of GD No. 907/2016 (as regards the technical and economic documentation related to publicly funded investment objectives), and two new annexes were also included, regulating the framework content of the pre-feasibility study and the framework content of the feasibility study related to this type of projects.

The main amendments and supplementations regarding the preparation of public-private partnerships, and works concessions or service concessions, respectively, are the following:

1. The framework content of the technical and economic documentation for investment objectives carried out as public-private partnerships, works concessions or service concessions including works, which are publicly funded in part or in full, and where design and construction risks are in part or in full transferred to the private partner/concessionaire, shall be adapted depending on the performance indicators that the investment has to meet during the operational phase.

2. The pre-feasibility study and the feasibility study will propose conceptual solutions for implementing investments by reference to minimum technical criteria, concrete functionalities and expected results that investment objectives must achieve during the operational phase; the constructive technical solutions will be subsequently developed by the private partner/concessionaire during the contract implementation stage.

3. The preparation of the general estimate and of the itemised estimate, as part of the feasibility study, is no longer required in this stage and is to be drawn up by the private partner/concessionaire, during the public-private partnership/concession contract implementation phase, on the basis of the technical solution declared successful in the award procedure. 

4. The maximum indicators are determined as the total expenditure that is publicly funded, which consists of the total amount of expenditure expressed as payment during the project preparation phase, as payments during the project construction phase and as payments during the operational phase of the project.

5. The framework content of the pre-feasibility study is regulated in Annex 3¹, while the framework content of the feasibility study is regulated in Annex 4¹.

Țuca Zbârcea & Asociații worked closely with International Finance Corporation during the preparation and drafting phase of the new legislation with the public authorities responsible for public contracts (in particular, the Public Investment Management Unit of the Ministry of Public Finance).

The firm deployed an experienced team of lawyers consisting of Iuliana Leon, Managing Associate and Tudor Bonifate, Associate.