Review proceedings

Relevant authorities

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

In Portugal, it is possible to challenge all decisions issued in public procurement procedures through administrative review proceedings that are regulated by the contracting authorities or through judicial review proceedings under the jurisdiction of administrative courts.

Review proceedings are not mandatory and are not often used.

Timeframe and admissibility requirements

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

The review proceeding concerning procurement decisions is characterised by its pressing urgency, aimed at avoiding excessive delays in the procurement procedure, and it must be brought within five business days. Furthermore, whenever the review concerns the award, the qualification decision or the rejection of a complaint regarding any of these decisions, the contracting authority must invite other bidders to submit their views and must issue a final following decision within five business days.

Judicial reviews can be initiated before the contract is formally concluded, and also after its termination.

Judicial proceedings regarding pre-contractual litigation must be filed within one month after the relevant decision has been issued and notified to the bidder. After the conclusion of the contract, any unsuccessful bidder can also seek remedies within six months of the conclusion of the contract or of its notice.

Because of the importance of obtaining a swift ruling, this kind of judicial proceedings usually takes no less than six months to obtain the first instance decision.

What are the admissibility requirements?

All procurement decisions and tender documents, as well as the signed contract, are justiciable. Any unsuccessful bidder can submit an application for review of a certain decision, tender document or contract, provided that it demonstrates it has been directly affected by the infringement at stake and that it will obtain an advantage with the review decision sought.

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

See question 35.

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?

According to the recent revision of the ACPC, the judicial proceedings on pre-contractual litigation filed to challenge the award decision of the contracting authority now have an automatic suspensive effect on the decision or on the contract’s performance. Nevertheless, the court may decide to lift the suspensive effect of said decision during the judicial proceeding for public interest reasons and after a balanced consideration of all interests involved.

With regard to judicial proceedings that are not filed for challenging an award decision, Portuguese law also provides for administrative courts to grant interim measures if so requested by the plaintiff.

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

Although not 100 per cent, the rate of success of applications for the lifting of an automatic suspension is high, since administrative courts in Portugal tend not to challenge the arguments presented by public authorities.

Disadvantaged bidders

Is it customary for disadvantaged bidders to file review applications?

Review applications are often filed, especially in cases in which the value or the strategic relevance of the contract is high.

Violations of procurement law

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

Yes, disadvantaged bidders can claim for damages.

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?

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

In the cases in which 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 the contracts are almost completed.

Typical costs

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

Administrative appeal of contracting authorities’ decisions does not have any cost to the challenging entity.

For judicial challenges, there is a judicial fee of €204 in the first instance, irrespective of the value of the action. In the case of appeal of the court’s decision, a variable judicial fee will be charged in accordance with the value of the claim.