Direct Payment To Subcontractors In Romanian Public Procurement

Public procurement, the process by which public authorities purchase work, goods or services, makes up a substantial part of the economies of the European Union Member States. Gradually it has become a significant area of EU regulation. It is the first time that the EU legislation on public procurement includes explicit rules on contract performance. A major innovation of the 2014 Directive is the introduction of rules regarding subcontracting. Regarding subcontracting, the new legislative package on public procurement had the following goals: the increasing of the participation of SMEs in the public procurement procedure, the guarantee that subcontractors comply with environmental, social and labor rules, the increasing of transparency in subcontracting and the granting to subcontractors of additional support in relation to a bad faith contractor by using the direct payment mechanism. Most of the new EU provisions give a vast discretionary power to the Member States and leave a lot of room for interpretation. The duty of the national legislator is to anchor the European regulation on public procurement contract performance to the national legal context and to create a framework that is clear and comprehensible. Otherwise, the regulation may lead to large variety of interpretations and legal uncertainty. The present study aims to explain and elucidate the multilayered instrument of direct payment to subcontractors, as seen by the romanian legislator. The study analyzes the provisions on direct payment to subcontractors, provisions that have been drafted carelessly, as if national legislator wished to shed darkness on the terms to which the contracting authority will be bound to with the subcontractor.