Review proceedings

Relevant authorities

Which authorities may rule on review applications? Is it possible to appeal against review decisions and, if so, how?

Procurement complaints can be filed before an administrative tribunal of contractual complaints, which is a special administrative body created specifically to solve some public procurement disputes, and the decisions of which may be subsequently appealed before judicial courts. Procurement complaints can also be submitted directly to the judicial courts.

Timeframe and admissibility requirements

How long do administrative or judicial proceedings for the review of procurement decisions generally take?

Administrative proceedings are normally concluded within one or two months.

Judicial proceedings may take two years initially, and another one or two years if a ruling is appealed before the High Court.

What are the admissibility requirements?

Besides formal requirements, there are two substantive issues that should be considered:

  • if a participant challenges an award based on any potential nullity of any term set out in the tender document, but did not challenge the tender document itself, the award challenge shall be dismissed, as it is considered that the lack of challenge of the tender documents is deemed as a full acceptance of their contents; and
  • if a participant challenges an award, the claim shall only be admitted if such participant would be the awardee of the public contract, if the administrative tribunal agrees with the participant’s legal grounds.

What are the time limits in which applications for review of a procurement decision must be made?

The deadline for appealing before the administrative tribunals of contractual complaints is 15 working days, and two months before the judicial courts. These periods start from the day following the date of publication or notification of the challenged administrative action or resolution. Both deadlines are strictly observed; thus, appeals filed later will be rejected.

Suspensive effect

Does an application for review have an automatic suspensive effect blocking the continuation of the procurement procedure or the conclusion of the contract?

If a challenge is filed against an award, the administrative tribunal of contractual complaints automatically suspends the conclusion of the contract.

Upon 30 working days as from the filing, the administrative tribunal of contractual complaints reviews the decision and can resume the conclusion of the contract if new circumstances require such continuation.

Furthermore, in the case of any other decision being challenged, such as the approval of the tender documents, the administrative tribunal of contractual complaints can adopt injunctive measures (including suspension of the procurement procedure) by its own decision or upon a request from the challenging bidder. Likewise, the administrative tribunal of contractual complaints is entitled to revoke such injunctive measures should it be advisable due to justifiable circumstances.

Approximately what percentage of applications for the lifting of an automatic suspension are successful in a typical year?

Ninety per cent of the automatic suspensions are in force until the conclusion of the claim before the administrative tribunal of contractual complaints.

Disadvantaged bidders

Is it customary for disadvantaged bidders to file review applications?

Approximately 2,000 appeals on public procurement matters are submitted every year (the central tribunal of contractual complaints issued more than 1,200 resolutions in 2018).

Considering that the special appeal on contracting in Act 9/2017 can be filed against a greater type of administrative decisions beyond the approval of tender documents, exclusions from public tenders or awards (for instance admission to public tenders, in-house providing or contractual amendments), this number is expected to increase.

Violations of procurement law

If a violation of procurement law is established in review proceedings, can disadvantaged bidders claim damages?

Yes, but only upon request of the bidder, and such damages shall be duly justified.

May a concluded contract be cancelled or terminated following a review application of an unsuccessful bidder if the procurement procedure that led to its conclusion violated procurement law?

Yes, but cancellation or termination is usually delayed until urgent measures are adopted to avoid damages to the public interests.

Typical costs

What are the typical costs of making an application for the review of a procurement decision?

Such costs depend on the estimated value of the contract. However, the minimum cost of the legal services related to the filing a challenge to a decision with the administrative tribunals of contractual complaints is €3,000 to €6,000.