According to Law 101/2016, challenges to the documents issued by the contracting authority may be filed either before the National Council for Solving Contestations (in Romanian “Contestatie”), an independent body with jurisdictional administrative authority, or before the administrative dispute department of the court that has jurisdiction over the contracting authority’s headquarters. In principle, the difference between the two alternative procedures/competences is that, whereas in the first scenario the complaint is heard by a panel comprised of 3 members (one of whom must have a law degree) on the basis of the documents filed by the parties (and only in exceptional cases pursuant to a hearing), the challenge filed with the court will be adjudicated by a judge in a public hearing, pursuant to oral arguments. The decision of the National Council for Solving Contestations may be challenged by a complaint filed with the Court of Appeals, which is the same forum where the trial court’s decision may be challenged by second appeal. Both the decision with respect to the complaint and the decision with respect to the second appeal are final and binding.
Even though the two procedures/competences have the same finality, namely the verification of the lawfulness of a document issued by the contracting authority, from the perspective of the actual adjudication procedure there are also differences that can hardly support an objective justification. In this article we will briefly analyze only one of them.
In the contestation, regardless of whether it is addressed to the Council or the court, any economic operator who participates or is interested in participating in the proceeding may file a voluntary intervention claim. According to the Code of Civil Procedure, the procedural law governing civil and administrative cases, there are two ways to file a voluntary intervention claim, each governed by its own legal regime. The main intervention claim is the one whereby the intervenor intends to appropriate for itself the right that is the object of the adjudication between the initial parties or a closely related right. On the other hand, the accesory intervention is the claim whereby the intervenor, motivated by its own interest, only supports the position of one of the parties.
The Code of the Civil Procedure also states that the main intervention claim can be filed only before the first level court, before the conclusion of the arguments on the merits. On the other hand, the accessory intervention can be filed up until the conclusion of the oral arguments, but still during the adjudication of the case, even in the extraordinary means of challenge.
Law 101/2016, the procedural norms of which apply exclusively to public procurement disputes, contains special regulations regarding the rules applicable to the intervenor. According to Art. 17 para. 3 of GEO 101/2016:
“Until the Council resolves the contestation, the economic operators interested in participating in the award procedure or those who participate in the award procedure may file the claim to voluntarily intervene in the litigation, pursuant to the provisions of Law 134/2010 on the Code of Civil Procedure, republished and subsequently amended, within 10 days from the publication of the complaint in the SEAP. The claim for intervention filed with the Council will be served upon the other parties in the case within two days from filing. In the case of procedures that are not initiated by publication in SEAP, the 10-day term is calculated from the date when the contestation is communicated.”
We thus note that Law 101/2016, as opposed to the Code of Civil Procedure, establishes for the filing of the intervention claim before the Council a term of 10 days from the publication in SEAP of the contestation, regardless of whether the claim for intervention is main or accessory. In reality, the rule is actually more geared towards the accessory claim, because the entity that has the interest in contesting a harmful document issued by the authority will almost always prefer to be a challenger and not an intervenor. In addition, a potential main intervenor may most times potentially be challenged with – and rightfully so, we would say – the fact that the deadline for challenging the contested decision has passed. More specifically, it could be considered that you cannot be entitled to claim as an intervenor (within a longer deadline) what you should have asked as a plaintiff within a shorter deadline.
We can only surmise that setting the 10-day special deadline for filing an intervention claim in the contestation proceeding before CNSC was intended to discipline the intervenors, given that this type of dispute must be resolved with celerity. We remind the reader that pursuant to the same Law 101/2016, the deadline for the Council to resolve the contestation on the merits should be 15 days from date when the public procurement file is received from the contracting authority. However, given that the intervenor, whether main or accessory, always adheres to a procedure at the stage in which the procedure is at any given moment, he will always have the prerogative to file the intervention claim at a point that would render it most useful; thus obviously prior to the resolution of the contestation.
In case of a contestation filed in court, the intervention is subject to the exclusive provisions of the Code of Civil Procedure; as such, the intervenor must react prior to the closing of the oral arguments, on the merits or on second appeal, depending on whether the claim for intervention is main or accessory.
An interesting situation is that in which the (accessory) intervention is filed directly in the complaint filed with the Court of Appeals, without having been previously filed in the contestation before the Council. Such scenario raises the question of whether such a claim for intervention could be considered inadmissible or belated by reference to the same provision of Art. 17 para. 3 of Law 101/2016.
The main argument in support of this incident would be that the procedure of challenging a document issued by the contracting authority is unitary; thus even if the challenging party chose the Council, then even in the appeal stage the intervention would be governed by the legal regime governing the contestation and not the legal regime governing the second appeal. More specifically, pursuant to this interpretation, the legal regime governing the intervention is dictated by opting for one of the two alternative procedures/competences for resolving the contestation, not by the procedural stage during which the claim for intervention is filed.
The Bucharest Court of Appeals addressed this issue and, at least for now, seems to have adopted a contrary position in civil decision nr. 753/15.02.2019. In this case, the court found that Art. 17 para. 3 of Law 101/2016 “is a special text that refers to the procedure of solving contestations before the National Council for Solving Contestations and not to the procedure of adjudication in court of the complaints against CNSC decisions, which is regulated under a separate chapter. Thus, the text applies strictly to the procedure for which it was destined, whereas the current procedure is governed by the provisions of Art. 29-35 of Law 101/2016, which is supplemented by the provisions of the generally applicable law enshrined in the Code of Civil Procedure (…………) As for the deadline for and the procedural stage during which an accessory intervention claim can be filed, the Court holds that they are governed by the provisions of Art. 63 para. 2 of the Code of Civil Procedure, which state: “the claim for accessory intervention may be filed up until the conclusion of the oral arguments, throughout the entire course of adjudication, even in extraordinary means of challenge.”
Even though the resolution of the court is correct at its face and especially by reference to the purpose of the accessory intervention, it does not remove the temptation to exploit the lack of legislative accuracy by invoking certain incidents similar to the one indicated above nor the risk that a contradictory solution will be issued with respect to the same legal issue. From this perspective, the clarification of the way in which the mechanism of the claim for intervention operates could, aside from other issues to be addressed separately, warrant a closer look from the law.