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 General Contracting Direction may review applications before the tender adjudication or void declaration is in force. After the tender adjudication or void declaration is in force, the Administrative Court will review applications for public procurement.

Time frame and admissibility requirements

How long do administrative or judicial review procedures generally take?

Admissions by the General Contracting Direction may take up to two business days and decisions must be rendered within five business days. If the General Contracting Direction does not render a decision within five business days, the process will be sent to the Administrative Court for Public Procurement.

Admissions by the Administrative Court for Public Procurement may take up to two business days, and decisions must be rendered within 10 business days if no evidence needs to be taken. Should evidence be taken it will be done within a term of 10 business days and an additional common term of two business days for closing arguments.

Once the Administrative Court for Public Procurement reaches a decision, action may be filed before the Third Chamber of the Supreme Court of Justice, which may take three years or more to issue a ruling.

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

For actions before the General Contracting Direction, the claim must be filed before the tender adjudication or void declaration is in force. Actions must relate to any act or omission that may be deemed illegal or arbitrary during the procurement procedure. For actions against the report by tender verification committee, observations must be filed beforehand against said report. Actions before the General Contracting Direction must include a bond for 10 per cent of the tender reference price.

For actions before Administrative Court for Public Procurement, the claim must include a bond for 10 to 15 per cent of the total proposal amount. Actions must relate to the resolution adjudication, rejecting or declaring void the procurement procedure.

For actions before Third Chamber of the Supreme Court of Justice, the recourse before the Administrative Court for Public Procurement must be duly exhausted. The Third Chamber of the Supreme Court of Justice may declare the nullity of the process or the contract.

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

A claim to be heard before the General Contracting Direction must be filed before the tender adjudication or void declaration is in force.

A claim to be heard before the Administrative Court for Public Procurement must be filed within five business days of the tender adjudication or void declaration being in force.

A claim to be heard before the Third Chamber of the Supreme Court of Justice must be filed no later than two months after the Administrative Court for Public Procurement decision is published.

Suspensive effect

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

Before the General Contracting Direction and the Administrative Court for Public Procurement, the admission of the claim will have an automatic suspensive effect. No recourse is available for a contracting party to lift the suspension. The suspension is lifted once a ruling is issued.

Before the Third Chamber of the Supreme Court of Justice, the claim does not have an automatic suspension effect. There is, however, a special petition to seek a stay, although it is generally not granted.

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

No recourse is available for a contracting party to lift the automatic suspension. A writ of amparo (a challenge seeking protection against orders breaching constitutional guarantees) may be filed before the Supreme Court of Justice; however, the resolution of the challenge may take up to a year, and procurement automatic suspensions rarely last longer that the terms previously stated.

Challenges to contracting authority decisions

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

It is quite common. From November 2019 to October 2020, 137 review applications were filed before the Administrative Court for Public Procurement. From January to March 2021, 141 review applications were filed before the General Contracting Direction.

Violations of procurement law

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

The Public Procurement Law establishes that persons or companies that use falsehoods or commit fraud in the tender process are liable for any damage caused. These claims must be filed in civil or criminal jurisdictions. Winning bidders are legally responsible for having concealed, when contracting, any exclusions, disqualifications, incompatibilities or prohibitions or for having supplied false information.

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

Yes, a concluded contract may be challenged by action before the Third Chamber of the Supreme Court. However, this remedy is rarely granted and review usually takes two years or more.

Contracts not concluded are subject to review application before the Administrative Court for Public Procurement. 

Typical costs

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

For review application before the General Contracting Direction, the average legal fees for the proceedings are US$3,000, and the plainttiff must post a bond for 10 per cent of the tender reference price. 

For review application before the Administrative Court for Public Procurement, average legal fees are US$5,000, and the plaintiff must file a bond for 10 to 15 per cent of the total proposal amount.

For review application before Third Chamber of the Supreme Court of Justice, average legal fees for the proceedings are US$30,000, and no bond is required.