Conflict of Interests Under Romanian Public Procurement Rules. Pros and Cons of the Prevent System

Abstract

The article starts with a short analysis on the main features of the definition of conflict of interest under public procurement laws at EU and Romanian level. Although it is a positive thing having a definition of conflict of interest in the current Public Sector Directive, a close look at this definition could raise some practical issues. Yet, this definition highlights the importance of prevention in detecting a potential or an actual conflict of interest. Thus, when a conflict of interest seem to occur, a contracting authority could take several measures from debarment of a bidder, exclusion of a member from the evaluation committee or even termination the public procurement contract. Since it obvious that is easier to limit the occurrence of this kind of situations, Romania has implemented the Prevent system since 2017. The Prevent system is designed to electronically detect a potential case of conflict of interest in public procurement procedures. Yet, Prevent system has its own limitations resulting from: (i) the category of persons under scrutiny and (ii) the number of exclusions form Prevent. Thus, the purpose of this article is to show that a great emphasis should be put also on raising awareness at the contracting authority level by updating the current internal procedures and monitoring the internal level of awareness. A starting point for such an update could be the example of contracting entities in energy sector that drafted detailed codes of conducts and internal policies addressing this issue. In this line, we must underline the fact that the employee’s level of awareness of conflict of interest rules is a minimum indicator under the Anti-Corruption National Strategy for 2016-2020.