LAW OF THE REPUBLIC OF MOLDOVA

of July 5, 2018 No. 121

About concessions of works and concessions of services

This law partially shifts the Directive 2014/23/EU of the European Parliament and Council of February 26, 2014 about award of concession treaties published in the Official magazine of the European Union by L 94 of March 28, 2014 with the last changes made No. 2017/2366 Delegated by regulations of the Commission (EU) of December 18, 2017.

The parliament adopts this organic law.

Chapter I General provisions

Article 1. Legal regulation

(1) This law regulates procedure for award of concession of works and concession of services, applicable legal regime, and also the specific aspects connected with award of the corresponding concessions and their realization.

(2) If the international agreements which party is the Republic of Moldova establish other regulations, than provided by this law provisions of the international treaty are applied.

Article 2. Purpose and principles

(1) the Purpose of this law are:

a) creation of the main regulatory base for award and realization of concession of works and concession of services by the buying bodies of public management;

b) ensuring integrity and transparency of the procedure of award of concession of works and concession of services;

c) use of public resources on the terms of efficiency, profitability and effectiveness;

d) encouragement of the competition of economic operators.

(2) Award of concession of works and concession of services is based on the following principles:

a) nondiscriminations - ensuring access to tender on concession award to all economic operators irrespective of whether they are registered in the Republic of Moldova or beyond its limits, whether the Republic of Moldova undertook to make it by signing of international treaties;

b) single approach - use of selection criteria and criteria of award of concession so that any economic operator had equal chances in tender of concession award;

c) mutual recognition - recognition by default documents and certificates issued by bodies of other state if the corresponding recognition is required by the international agreements which party is the Republic of Moldova;

d) transparency - provision to interested persons and the public of all information concerning application of the procedure of award of concession with observance of provisions of Article 22;

e) legality - observance of the national legal system and international treaties which party is the Republic of Moldova;

f) predictability - documentation on award shall regulate the procedure of award of concession accurately;

g) proportionality - respect for balance between the established requirements to qualification, criteria of award of concession, nature and degree of complexity of the subject of the agreement so that the measures taken within the procedure of award of concession answered the pursued purpose and were not beyond necessary for their achievement;

h) acceptances on itself responsibility - the obligation of the buying bodies, economic operators and concessionaries to bear legal responsibility in case of violation of obligations assumed within concession.

Article 3. Basic concepts

For the purpose of this law the following concepts are determined:

the buying body - body of the public power; legal entity of the public law; consolidation of the relevant bodies / persons which members appoint from the number by means of the civil transaction the legal entity representing them as the single buying body in the relations with any economic operator; the property connected with the works and services constituting subject to concession - the personal and real estate which is in public property of the state or administrative and territorial units, including fully or partially excluded from civil circulation according to the legislation which is made by the buying bodies available to the concessionary on condition of its need for performance of works and/or rendering services;

the specification - the written instrument in which specifications of performance of works, the quality requirement of materials, the applied standards and technical regulations and which represents set of requirements based on which the technical proposal of the offerer is developed are in detail provided;

total turnover of the concessionary - the turnover made during all effective period of the concession treaty without the value added tax;

the concessionary - the economic operator to whom concession with simultaneous transfer into it of operational risk of the concession treaty according to Article 6 is awarded;

concession - the concession treaty about works or the concession treaty about services;

concession conditions - the general terms of realization of concession and procedural conditions approved by the Government or authorities of local public authority which, in particular, treat eligibility criterions, criteria of award, the minimum or maximum term of concession, investment or other obligations and which shall be included in documentation on award;

the concession treaty about works - the paid agreement signed in writing according to which one or several buying bodies trust one or several economic operators performance of works, and also operation of the property connected with the works constituting subject to concession and according to which counter execution of works is provided or exclusive right on operation of the works constituting subject to concession or this right along with payment;

the concession treaty about services - the paid agreement signed in writing according to which one or several buying bodies trust one or several economic operators rendering services and management of services, others, than performance of works, provided by the concept "the concession treaty about works", and also operation of the property connected with the services constituting subject to concession and according to which counter execution for rendering services is provided or exclusive right on operation of the services constituting subject to concession or this right along with payment;

investment expenses - expenses on implementation of investments during all term of concession; the expenses connected with performance of works and/or rendering services - the expenses incurred by the concessionary in connection with operating activiies and maintenance of works or services;

documentation on award - the document package containing requirements, criteria, rules and other necessary information providing to the economic operator complete, correct and distinct informing on requirements of the buying body, concession elements, subject of the concession treaty and procedure for holding procedure of award of concession, specifications or the descriptive document containing also the offered contractual terms, format and procedure for submission of documents by offerers, information on fundamental obligations of offerers, the feasibility statement, etc.;

performance of works - the process consisting either in performance of works, or in designing and performance of works and realization by all means the requirements established by the buying body having significant effect on type or designing of works;

the offerer - the economic operator who submitted the offer within the procedure of award of concession;

the offer - the legal act which the economic operator expresses the intention from the legal point of view to become the party of the concession treaty and which contains financial and technical offers, and also, according to documentation on award, conditions of the conclusion of the concession treaty;

the economic operator - any physical person or legal entity of private law, including foreign; group or consolidation of such persons, including temporary, except for the legal entities registered in the jurisdictions which are not applying international standards of transparency;

person making decisions - the head of the buying body, the member of the bodies making the decision in the buying body which is related to the procedure of award of concession and also any other person as a part of the buying body, capable to influence contents of the documents relating to concession and/or for holding procedure of award of concession;

the procedure of award of concession - the set of rules on the organization and implementation of public tender and competitive dialogue with the concession award purpose;

days - calendar days, except as specified, when other is directly provided.

Article 4. Scope of application

(1) This law is applied to concessions at least five, but no more than 35 years which estimated value without the value added tax is equal or exceeds the following cost limits:

a) 10 000 000 lei - for concession treaties about works;

b) 5 000 000 lei - for concession treaties about services.

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