A practical guide for foreign companies bidding for or performing public contracts in Romania.
Foreign companies entering Romanian public procurement tend to read the rulebook (Law no. 98/2016 on public procurement, Law no. 99/2016 on utilities procurement, Law no. 100/2016 on works and services concessions, and Law no. 101/2016 on remedies) as an administrative code. The same conduct that an administrative reviewer treats as a disqualification, a prosecutor can treat as a crime. The two tracks run in parallel and feed each other: a finding by the National Agency for Public Procurement, the National Council for Solving Complaints, or the Court of Accounts routinely becomes the opening file of a criminal investigation by the National Anticorruption Directorate or, where European money is involved, the European Public Prosecutor's Office.
Three features of the Romanian system raise the risk for a foreign bidder.
First, the company itself is exposed, not only its managers. Under Articles 135 and 136 of the Criminal Code (Law no. 286/2009), a legal person bears criminal liability in its own right, and the complementary penalties include an express ban on participating in public procurement procedures (a court-ordered debarment).
Second, a criminal conviction is a mandatory exclusion ground. Under Articles 164 and 167 of Law no. 98/2016, a final conviction for corruption, fraud affecting the European Union's financial interests, money laundering, or organised crime keeps the operator out of every future Romanian tender, with only the narrow "self-cleaning" path of Article 171 available.
Third, the exposure is cross-border. A payment made in Bucharest can be prosecuted in Washington under the Foreign Corrupt Practices Act or in London under the Bribery Act 2010, and a fraud touching European funds can be prosecuted by the European Public Prosecutor's Office across every participating Member State at once.
1. Improper payments to public officials
The obvious risk, and still the most common. Offering or giving anything of value to a contracting-authority official to obtain or keep a contract is active bribery under Article 290 of the Criminal Code, aggravated where Law no. 78/2000 on preventing, discovering and sanctioning corruption offences applies.
The traps are the "expediting" payment to release a guarantee, the lavish hospitality timed to an evaluation, the sponsorship of an official's pet project, the job promised to a relative. Romanian law does not recognise a facilitation-payment exception, and the value of the benefit goes to gravity, not to whether the offence exists. The instinct that "this is how business is done here" is the rationalisation that prosecutors rely on; it is not a defence.
2. Intermediaries, agents and "consultants who know people"
The structure that catches sophisticated companies is the local agent retained on a success fee, paid through a consultancy invoice, who delivers an access or an outcome that the company could not have obtained on its own. Where the agent trades on real or supposed influence over the decision-maker, the company that pays for that influence commits buying of influence under Article 292 of the Criminal Code; the agent commits trading in influence under Article 291.
A company does not escape liability by not asking what the consultant did to earn the fee. Wilful blindness is usually treated as knowledge. The defensible position is documented, proportionate fees tied to genuine, verifiable services, with due diligence on the intermediary's ownership, its links to officials, and the commercial logic of the engagement. If the only thing the consultant brings is a relationship, the fee is buying that relationship.
3. Conflicts of interest and the revolving door
Romanian procurement law polices conflicts of interest on three layers, and a foreign bidder is exposed on all three. Administratively, Articles 58 to 63 of Law no. 98/2016 require the contracting authority to prevent and remove conflicts, and Law no. 184/2016 runs an ex-ante electronic check - the integrity mechanism operated through the National Integrity Agency - that can flag a bidder before award. A finding can void the award and the contract even where no one is prosecuted.
Criminally, the official who uses the office to obtain a patrimonial benefit for himself or close family commits the offence under Article 301 of the Criminal Code (using one's office to favour persons, the former conflict-of-interest offence, narrowed by Law no. 193/2017). The bidder's exposure here is as instigator or accomplice - for example, where the company arranges to hire the evaluating official's relative, or takes on the official himself shortly after award. Such a hire can be charged as consideration for the award itself.
An open investigation is a serious commercial fact and can still support voluntary exclusion or a self-cleaning conversation, but it is not, on its own, a mandatory exclusion trigger under Articles 164 and 167 - only a final conviction is.
4. Bid rigging and collusion
Coordinating with competitors - cover bids, market or customer sharing, bid rotation, or agreeing to stay out of a tender - is a restrictive agreement prohibited by Article 5 of Competition Law no. 21/1996 and enforced by the Competition Council with fines reaching ten per cent of worldwide turnover. That is the administrative track, and it is severe on its own.
There are two criminal overlays foreign companies underestimate. First, natural persons who fraudulently conceive or organise a prohibited agreement face personal criminal liability under Competition Law no. 21/1996. Second, the Criminal Code contains a dedicated offence in Article 246 (rigging of public auctions) which punishes both keeping a participant away from a public tender by coercion or corruption and an agreement among participants to distort the adjudication price. The "courtesy" of letting a competitor win this one in exchange for the next is the textbook fact pattern. The Competition Council's leniency programme rewards the first to confess, which gives every participant in an agreement an incentive to report the others first.
5. False statements and forged documents in the tender
The self-declaration submitted at qualification - the European Single Procurement Document - is a formal statement on which the authority relies. Overstating experience, attaching an experience certificate that does not reflect reality, presenting financial statements or third-party support that will not withstand verification, or concealing a prior exclusion ground, exposes the signatory to false statements under Article 326 of the Criminal Code and, where a document is fabricated or altered, to forgery and use of forged documents under Articles 320 to 323.
These offences do not require a bribe, a loss to the authority, or even a contract won. The false declaration is complete on submission. For a multinational relying on a local subsidiary or a bid team under deadline pressure, this is the single most frequent criminal trigger, and the one most easily prevented by verifying every factual representation before it is signed.
6. Abuse of office, and how a contractor becomes a participant
Abuse of office under Article 297 of the Criminal Code is the most widely used offence in Romanian white-collar enforcement, and the 2023 reform narrowed it. Following the Constitutional Court's Decision no. 405/2016, Law no. 200/2023 confirmed that the breached duty must derive from primary legislation (i.e. a law or a Government ordinance) and that the act must be committed knowingly. The Parliament declined to enact a monetary threshold, and the Constitutional Court held that the offence stands without one; the gravity is left to the court.
A private contractor is not the natural subject of this offence - the official is - but the contractor is usually charged as co-author, instigator or accomplice. If your company solicited, shaped, or knowingly took the benefit of an unlawful award, an irregular contract modification, or a waved-through acceptance, you are inside the file with the official. The breadth of the offence and the absence of a value threshold mean that even modest irregularities carry criminal weight.
7. European funds and the European Public Prosecutor's Office
When a contract is financed in whole or in part from European money, the risk profile changes. Fraud affecting the European Union's financial interests is a distinct, aggravated category under Law no. 78/2000, transposing Directive (EU) 2017/1371 on combating fraud to the Union's financial interests by means of criminal law.
Inflated claims, fictitious eligible costs, manipulated procurement to favour a predetermined winner, double funding, acceptance reports for work never done and costs billed through a contractor for work performed in-house all fall here.
The European Public Prosecutor's Office, established by Council Regulation (EU) 2017/1939, has direct competence over these offences in Romania and operates across every participating Member State.
Detection often starts before either file is opened. ARACHNE, the risk-scoring tool the European Commission provides free of charge to managing authorities, cross-checks every beneficiary, contract and contractor against ownership, sanctions and prior-project data, flagging risk across categories that include procurement and conflict of interest. Romanian managing authorities are required to run these checks, and a red flag here often opens the criminal file.
In parallel, Government Emergency Ordinance no. 66/2011 allows financial corrections that recover the funds - an administrative recovery that proceeds independently of, and often faster than, the criminal case.
8. The performance phase: variations, false acceptance and quality fraud
Criminal exposure does not end at award; much of it is created during execution. Substantial contract modifications that exceed what Article 221 of Law no. 98/2016 permits - scope creep, value increases, or extensions that should have triggered a fresh tender - can be recast as a deliberate circumvention of competition. Acceptance and completion documents that certify work not done, materials substituted for cheaper ones, or services never rendered, generate forgery under Articles 320 to 323 and feed abuse of office and fraud against European funds where applicable.
The procurement rules continue to apply after signature. The variations, the reception reports, the progress claims are documents a prosecutor can later test against reality.
9. Money laundering, beneficial ownership and the subcontractor chain
Where contract revenue, a kickback, or a fraudulently obtained payment is moved, layered, or integrated through corporate structures, Law no. 129/2019 on preventing and combating money laundering is engaged - and the predicate offence is frequently one of the procurement crimes above. Opaque ownership, shell subcontractors with no genuine capacity, and circular invoicing within a group are the classic indicators.
Two practical points for a foreign group. First, beneficial-ownership transparency is a legal obligation; a structure designed to obscure who ultimately benefits invites the inference of laundering. Second, the subcontractor and supply chain is part of your own exposure: a front company two tiers down can taint otherwise legitimate revenue and draw the parent into the investigation.
10. Corporate liability, debarment, and the absence of a negotiated settlement route
Romania combines corporate liability that runs alongside individual liability, a conviction that operates as an automatic market exclusion, and no negotiated route out of either.
The company is a defendant in its own right under Articles 135 and 136 of the Criminal Code, and the menu of complementary penalties includes dissolution, suspension of activity, closure of premises, and - directly relevant here - a ban on participating in public procurement procedures. A final conviction is, separately, a mandatory exclusion ground under Articles 164 and 167 of Law no. 98/2016, with only the narrow self-cleaning remedy of Article 171 available.
A criminal investigation does not, by itself, automatically exclude a bidder from Romanian public procurement. It can nevertheless create immediate commercial consequences: internal investigations, funder or managing-authority audits, enhanced due diligence in future tenders, and reputational damage long before any court judgment.
There is also a gap that foreign general counsel should understand at the outset. Romania has no deferred-prosecution or non-prosecution-agreement framework of the kind familiar from the United States, the United Kingdom, or France. A legal person can enter a guilty-plea agreement under the Criminal Procedure Code, but there is no negotiated corporate resolution with a monitorship and a non-conviction outcome. Prevention therefore matters more here than in jurisdictions where a problem can be settled after the fact. A genuine, documented compliance programme - bid-integrity controls, intermediary due diligence, gifts-and-hospitality limits, conflict screening, and verification of every tender representation - is what allows a company to demonstrate that it did not authorise the conduct.
What foreign bidders should have before submitting a tender
A foreign bidder needs a file that can be shown, later on, to an auditor, a contracting authority or a prosecutor. Before submitting a tender, the minimum pack should include:
- an intermediary due-diligence file covering ownership, capacity, links to officials, fee logic and the actual services to be delivered;
- a conflict-of-interest check for the bidder, affiliates, proposed experts, subcontractors and key authority-facing personnel;
- beneficial-ownership and subcontractor screening, including capacity checks for entities that will invoice or perform material parts of the contract;
- an evidence file for every ESPD and qualification statement, so that experience, turnover, technical capacity and third-party support can be proved before submission;
- an approval trail for contract variations, acceptance documents and payment claims, especially where scope, price, deadline or eligible costs change during performance.
A closing word
All of these issues arise regularly. Romanian enforcement is intense, the institutions are capable, and the European dimension means the file rarely stays inside one border. For a foreign company, the cost of getting this wrong is exclusion from the market. The companies that do well here are the ones whose paper survives a prosecutor reading it two years later.