Review proceedings

Competent review bodies

Which bodies are competent to review alleged breaches of procurement legislation? Is it possible to appeal against a review body’s decisions?

The Public Contracts Law (PCL) repealed most of the regulation regarding appeals against review decisions prescribed in the Administrative Procedure and Administrative Activity Code.

According to the PCL, it is possible to challenge all decisions issued in the context of public procurement procedures either through administrative review proceedings, which are regulated by the contracting authorities, or through judicial review proceedings, under the jurisdiction of administrative courts.

Regarding this type of decision, the Cabinet of Public Procurement is charged with supporting the executive branch in defining and implementing policies and practices on public procurement, judging administrative proceedings during reviews of procurement decisions and controlling the legality of these procedures.

Administrative review proceedings in this context may not be refused on any grounds by the relevant administrative bodies.

Time frame and admissibility requirements

How long do administrative or judicial review procedures generally take?

Review proceedings for procurement decisions are characterised by a pressing urgency aimed at avoiding excessive delays in the procurement procedure. In this sense, the review request should be brought within five business days of the decision that is being challenged. Furthermore, if the review concerns an award or qualification decision, the contracting authority must first invite other bidders to submit their views and only thereafter issue a final decision, within five business days of the deadline established for the other bidders to submit their views.

Judicial reviews can be initiated before the contract is formally signed and after its termination. Usually, it takes no less than six months to obtain a first-instance decision.

Judicial proceedings regarding pre-contractual litigation must be filed within 60 days of the relevant decision being issued and the bidder being notified.

What are the admissibility requirements for an application to review a contracting authority decision?

All procurement decisions, as well as signed contracts, are justiciable. Any unsuccessful bidder can submit an application for the review of a decision or contract, provided the bidder demonstrates that it has been directly affected by an infringement and that it will obtain an advantage with the review decision being sought, based either on the legality or on the merits of the decision in question.

What are the time limits within which applications for the review of contracting authority decisions must be made?

The review request should be brought within five business days of the decision that is being challenged. Furthermore, if the review concerns an award or qualification decision, the contracting authority must first, within five days of the application, invite other bidders to submit their views and only thereafter issue a final decision, within five business days of the deadline established for the other bidders to submit their views.

Suspensive effect

Does an application for the review of a contracting authority decision have an automatic suspensive effect on the contract award procedure?

According to the PCL, the administrative procedure for reviewing procurement decisions does not automatically suspend the continuation of the procurement procedure. However, while there is no review decision on the case or while the legal deadline for such a decision has not yet expired, the contracting authorities cannot, depending on the stage of the procedure, qualify bidders, initiate the negotiation phase, award the contract or sign the contract.

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

Not applicable.

Challenges to contracting authority decisions

How customary is it for contracting authority decisions to be challenged?

Review applications are often filed, especially in those cases where the value of the contract is high or it has significant strategic relevance.

Violations of procurement law

If a violation of procurement law is established in review proceedings, can this lead to the award of damages?

Yes, disadvantaged bidders can claim for damages.

Is it possible for a concluded contract to be set aside following successful review proceedings?

A concluded contract may be cancelled or terminated following a review application of an unsuccessful bidder. Nonetheless, these situations are not very common.

Typical costs

What are the typical costs involved in making an application for the review of a contracting authority decision?

The typical costs of making an application for the review of a procurement decision rise to approximately 25 per cent of the value of the contract, but in the absence or impossibility of such a determination, costs are established in accordance with the subsidiary rules stipulated in civil proceedings.