THE CAPACITY TO SUE IN PUBLIC PROCUREMENT REDRESS PROCEDURES

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• THE CAPACITY TO SUE IN PUBLIC PROCUREMENT REDRESS
  PROCEDURES
• Marija Cvrlje, LL B
• Vice President

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• A party is an individual
• at whose request a procedure is launched or
• against whom a procedure is conducted or
• who is entitled to participate in a procedure to
  protect its rights or legal interests

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A party is an individual

• - at whose request a procedure is launched
  ACTIVE PARTY
• against whom a procedure is conducted PASSIVE
  PARTY
• who is entitled to participate in a procedure to
  protect its rights or legal interests
  INTERESTED PARTY

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The conditions for a party to act are

• Capacity of the party (capacity to bear rights
  and obligations)
• Procedural capacity (capacity to independently
  engage in procedural activities)
• Legitimacy of the partys motive (legitimatio ad
  causam existence of a link between specific
  persons with the matter at hand)

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• The capacity for action by a party are essential
  procedural prerequisites for the entire duration
  of the procedure, the body conducting it is
  obliged to ensure whether the individual
  appearing as a party is duly capable of
  participating in said procedure

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Who are the parties to a public procurement
procedure?

• Contracting authority
• Bidder
• Participant
• Interested commercial entity

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When someone becomes a participant in a public
procurement procedure

• Contracting authority pursuant to plan and
  decision by authorized official to establish
  commission of experts
• Bidder by submitting bid, only if submitted
  prior to deadline

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• 3. Participant in selective procedures or
  direct negotiations with announcement/ delivery
  of application for participation in public
  procurement procedure. Participants demonstrating
  qualifications are entitled to submit bids.
  Participants unable to demonstrate qualifications
  are also entitled to delivery of the selection
  decision, which the contracting authority is
  obliged to deliver.

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• 4. Interested commercial entities (in direct
  negotiations without announcement of invitation)
  all commercial entities that demonstrate their
  interest
• Interest is any potential benefit that any party
  may obtain from rendering of the requested legal
  redress.

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Who can appeal?

• In open, selective and direct negotiation
  procedures with announcement of invitation only
  participants in the procedure
• In direct negotiation without announcement of
  invitation interested commercial entities

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• Bidder bid submitted (Article 50 of Public
  Procurement Act)
• Complaint submitted to contracting authority
  within 3 days after receiving selection decision
  (Article 70(1) of Public Procurement Act)
• The complaint must be timely, allowable, and
  issued by the authorized person

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• Response to complaint (Article 70(6) of Public
  Procurement Act) or non-response to complaint
  (Article 71(3) of Public Procurement Act)
• Appeal to State Commission for Supervision of
  Public Procurement Procedures, photocopy
  concurrently sent to client.
• Appeal allowable, timely and issued by the
  authorized person.

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• Direct negotiations direct deal without prior
  invitation to bid (NAB 44)
• Every commercial entity that has an interest in
  this procurement or may incur damage (Article
  70(2) of the Public Procurement Act)
• Complaint deadline 8 days after announcement
  in Croatias official journal, Narodne novine

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• Appeal timely, allowable and issued by
  authorized person, with photocopy concurrently
  sent to client
• Submit formal and substantive evidence pertaining
  to procurement matter

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• Selected bidder/party to procedure
• response to appeal

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Administrative suit

• Prerequisite is existence of administrative
  action
• Appeal filed
• Administrative action cause for emergence of
  administrative suit, conducted as dispute between
  parties.

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Parties in administrative suits

• Three types of parties
• Plaintiff
• Defendant
• Interested third parties

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Plaintiff

• Right to sue
• Possibility of violation of a right or direct
  interest based on law

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Defendant

• The authority whose action is contested, the
  originator of the administrative action

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Interested third party

• Allow redress of procedural rights (delivery of
  suit for response, submit evidence, etc.)

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Draft for new Public Procurement Act

• Parties to redress
• - Participant or bidder in public procurement
  procedure, and any other commercial entity with a
  legal interest in securing a contract in this
  public procurement,
• Croatian Governments Public Procurement Office
  and/or Public Prosecution.

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• The Croatian Governments Public Procurement
  Office and Public Prosecution may file an appeal
• They have the status of parties provided that
  they report their participation

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• Appeals in all phases of public procurement any
  commercial entity that may have an interest
• Submitted to State Commission via the contracting
  authority

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• An appeal is announced within 8 days after the
  date of
• Announcement of public procurement
• Opening of bids
• Receipt of decision on individual right
• Expiry of decision-making deadline
• Learning that procurement procedure conducted in
  a manner contrary to the Act

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• The appellant who fails to file an appeal in
  compliance with the aforementioned provisions
  forfeits the right to seek a review of legaility
  in subsequent procedural phases

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Administrative suit

• Same rules apply

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• THANK YOU FOR YOUR ATTENTION!
• Marija Cvrlje, LL B
• Vice President