Changes in the procedure of appeal under the Public Procurement Act

Latest amendments to the Public Procurement Act (promulgated in the State Gazette, No. 49 dd. 12.06.2018) affected the procedure of appeal referred to therein. According to the grounds laid down in the draft act these changes aim at overcoming the practices of a tendentious and unreasonable appeal.

In the first place, it has been introduced an opportunity to seek liability for damages caused in result of misusing the right of appeal. Pursuant to the new Article 196a of the Public Procurement Act the parties involved in the procedure and their representatives are required to exercise their procedural rights in good faith. It is envisaged that liability for damages upon undue exercising the rights conferred on the parties and their representatives arises in ordinary civil proceedings after completion of the proceedings of appealing the awarding procedure of a given public procurement.

For the purpose of reducing the submission of complaints which are not justified the new amendments in the Public Procurement Act introduce further requirements to the content of the complaint and the evidences pertaining thereto. According to the new changes the complaining entity is required to state in the complaint in a comprehensive and specific manner all its objections and the grounds, on which they are based, as well as to request its claims. Furthermore, the complaining entity must also provide evidence of the circumstances which it claims as well as of the representative power if the application is being lodged through a representative.

To highlight the importance of the new amendments and most of all of justifying the legitimate interest to bring a complaint, Article 213, Paragraph 1, Item 1 of the Public Procurement Act explicitly states that the Commission for Protection of Competition shall terminate the procedure by means of a decision in case of  inadmissibility of the appeal, including where the complainant has not justified and proved its legitimate interest.

If by the complaint the imposition of a temporary measure “suspension of the procedure” is requested, then the procedure for awarding the public procurement shall be suspended from date of the notification by the contracting authority of the initiation of proceedings by the Commission for Protection of Competition, and not from the date on which the complaint requesting the imposition of the temporary measure is lodged as it was before the changes. The purpose is to overcome the negative consequences of unjustified suspension of the procedure in cases where the complaint has subsequently proved to be irregular.

The procedure for summoning the parties on the part of the Commission for Protection of Competition is also facilitated having regard to the possibility to summon the parties electronically.

It should be noted that the amendments have an effect for the future and to complaints submitted to the Commission for Protection of Competition prior to the amendments shall apply the former procedure.

You can read the full version of the changes here.

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