Stating that in its contents are inserted only the defenses of the respondent-defendant, without concrete motivation of the reasons for which the provisions of art. 11 paragraph (7) H. G. no. 925/2006, as further amended are considered violated.
Thus, in a wrong way, it held that the contracting authority requested through the Procurement data sheet, section. V.4.5. information about the subcontractors, as a minimum requirement, they needing to submit the Findings Certificate and the Sole Identification Code (CUI), because one can not speak of a mandatory minimum requirement in order for the provisions mentioned above to be incident, considering that the request of those documents was not provided in the legislation as a restrictive requirement, citing the Order of the President of A.N.R.M.A.P. No. 509/2011.
The High Court of Cassation and Justice dismissed as unfounded the appeal for the following reasons:
From the documents of the file case it results that the appellant-plaintiff, as contracting authority, concluded the Site Inspection Services Agreement of 25 November 2011 (after the entry into force of O.U.G. no. 66/2011) with SC A.B.S. Ltd, as beneficiary of the Non-refundable financing Agreement of 22 April 2011, SMIS 3079 for the project “Rehabilitation and modernization DJ 648 IONE- Olanu – Olt county limit, Km. 0 + 000 – Km. 8 + 900 and the construction of two reinforced concrete bridges, Valcea county “. Control bodies with the A.M.P.O.R – M.D.R.A.P. applied a 5% correction following the analysis of the Reimbursement Claim no. 3 to the Services Agreement of 2011, retaining as an irregularity the violation of art. 11 paragraph (7) of H. G. no. 925/2006, consisting in the insertion in the Procurement data sheet, section. V.4.5. information about the subcontractors as mandatory minimum requirements, the presentation of data about the subcontractors: findings certificate and CUI, solution confirmed by the court of first instance through the appealed sentence.
According to Art. 11 paragraph (7) of H. G. no. 925/2006, “the contracting authority is not entitled to impose the fulfillment of qualification criteria for the potential subcontractors, but human material resources of the declared subcontractors are considered, for their part of involvement in the contract which is to be fulfilled, if relevant documents are presented in this regard “.
On the other hand, according to art. 45 paragraph (2) of O.U.G. no. 34/2006, the contracting authority could have requested from the bidder to present the party / parties of the agreement that they are going to subcontract and the data of acknowledgment of the proposed subcontracting parties.
But, in the file, the contracting authority imposed as requirement presenting the Findings Certificate and the Sole Identification Code of the subcontracting parties, which exceeds the information necessary to identify the economical operators which are going to be subcontractors, consisting in a violation of art. 11 paragraph (7) of H. G. No. 925/2011 and art. 45 paragraph (2) of O.U.G. No. 34/2006.
Thus, judiciously, appreciated the court of first instance the existence of the irregularity found by the control bodies and the legality of the financial correction measure for the two bills: of September 17, 2012 and, respectively, of November 5, 2012, amounting 528.76 RON, representing 5% of the value of the Site Inspection Services Agreement of 25 November 2011.
In conclusion, the appeal will be dismissed as unfounded, the sentence appeal and administrative acts being legal and lawful.