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THE CAPACITY TO SUE IN PUBLIC PROCUREMENT REDRESS PROCEDURES

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Title: THE CAPACITY TO SUE IN PUBLIC PROCUREMENT REDRESS PROCEDURES


1
  • THE CAPACITY TO SUE IN PUBLIC PROCUREMENT REDRESS
    PROCEDURES
  • Marija Cvrlje, LL B
  • Vice President

2
  • 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

3
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

4
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)

5
  • 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

6
Who are the parties to a public procurement
procedure?
  • Contracting authority
  • Bidder
  • Participant
  • Interested commercial entity

7
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

8
  • 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.

9
  • 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.

10
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

11
  • 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

12
  • 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.

13
  • 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

14
  • Appeal timely, allowable and issued by
    authorized person, with photocopy concurrently
    sent to client
  • Submit formal and substantive evidence pertaining
    to procurement matter

15
  • Selected bidder/party to procedure
  • response to appeal

16
Administrative suit
  • Prerequisite is existence of administrative
    action
  • Appeal filed
  • Administrative action cause for emergence of
    administrative suit, conducted as dispute between
    parties.

17
Parties in administrative suits
  • Three types of parties
  • Plaintiff
  • Defendant
  • Interested third parties

18
Plaintiff
  • Right to sue
  • Possibility of violation of a right or direct
    interest based on law

19
Defendant
  • The authority whose action is contested, the
    originator of the administrative action

20
Interested third party
  • Allow redress of procedural rights (delivery of
    suit for response, submit evidence, etc.)

21
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.

22
  • 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

23
  • Appeals in all phases of public procurement any
    commercial entity that may have an interest
  • Submitted to State Commission via the contracting
    authority

24
  • 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

25
  • 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

26
Administrative suit
  • Same rules apply

27
  • THANK YOU FOR YOUR ATTENTION!
  • Marija Cvrlje, LL B
  • Vice President
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