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?

According to the Mozambican legal framework, it is possible to challenge qualification and disqualification decisions, as well as award decisions through administrative review proceedings.

Complaints must be filed within five business days of the notification of the challenged decision. This administrative review proceeding is assessed by the contracting authorities, which must decide whether to accept or reject the complaint within 10 business days of receipt. The filing of a complaint does not require the payment of any fees.

Until the final day to file a complaint, all tenderers have free access to the tender’s administrative documents.

Furthermore, it is also possible to challenge the above-referred decisions through a hierarchical appeal. The hierarchical appeal must be filed within three business days of the notification of the challenged decision. The hierarchical appeal is assessed by the minister supervising the contracting authority, the provincial governor or the district administrator. Regardless of the entity at stake, a decision whether to accept or reject the hierarchical appeal must be taken within 30 business days of the filing date.

Filing a hierarchical appeal requires the payment of a fee. The tenderer must submit a guarantee that does not exceed 0.25 per cent of the estimated contract’s value (up to a maximum of 125,000 meticais), which may be financially updated by the Minister of Finance. This guarantee is reimbursed if the appeal is accepted; otherwise, it reverts to the state.

Finally, the decision rendered under the hierarchical appeal may be judicially reviewed in accordance with the procedures regulated under Law 7/2014 of 28 February.

Time frame and admissibility requirements

How long do administrative or judicial review procedures generally take?

Complaints must be filed within five business days of the notification of the challenged decision. This administrative review proceeding is assessed by the contracting authority after the jury has forwarded it, together with its opinion, within five business days. The contracting authority must decide whether to accept or reject the complaint within 10 business days of receipt. This decision can be challenged through a hierarchical appeal. The hierarchical appeal must be filed within three business days of the notification of the challenged decision. The hierarchical appeal is assessed by the minister supervising the contracting authority, the provincial governor or the district administrator. Regardless of the entity at stake, a decision on whether to accept or reject the hierarchical appeal must be taken within 30 business days of the filing date.

In relation to judicial proceedings, there are no provisions that require judges to render decisions within a determined time frame.

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

All procurement procedure decisions may be challenged through complaints and appeals. According to the RPC, it is possible to challenge qualification and disqualification decisions, as well as award decisions.

A hierarchical appeal can be filed on the following grounds:

  • a violation of the RPC;
  • a violation of the tender rules; or
  • a breach of procedure, including for lack of or inadequate reasoning, which affects the legality of contracting authorities’ decisions.

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

A hierarchical appeal must be filed within three business days of the notification of the challenged decision. The hierarchical appeal is assessed by the minister supervising the contracting authority, the provincial governor or the district administrator. Regardless of the entity at stake, a decision on whether to accept or reject the hierarchical appeal must be taken within 30 business days of the filing date.

Suspensive effect

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

Yes. Both mechanisms of complaint and hierarchical appeal suspend the tender’s course. All tenderers are notified of the suspension.

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

The RPC does not provide for the possibility to lift an automatic suspension.

Challenges to contracting authority decisions

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

Although there are cases of disadvantaged bidders filing review applications, especially when the value of the contract is high or it has significant strategic relevance, most disadvantaged bidders abstain from this practice.

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, those situations are not very common.

In cases where judicial decisions determine the cancellation of an executed contract, contracting authorities usually appeal such decisions, and when final and non-appealable decisions are finally issued, contracts are almost completed.

Typical costs

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

Filing a complaint does not require the payment of any fees. Nevertheless, the filing of a hierarchical appeal requires the tenderer to provide a guarantee as security, the amount of which cannot exceed 0.25 per cent of the contract’s estimated value, up to a limit of 125,000 meticais.