It is possible to appeal to the public authorities responsible for the bidding procedure if any illegality occurs is present in the bid call document or in the conduct of the proceedings. If the appeal is not granted, it is still possible to sue to enforce the correction of the illegalities.
Almost every act of the public tender may be challenged. Article 109 of Law 8,666/93 provides for the hypothesis where the administrative appeals can be filed. Basically the interested party may challenge the habilitation/qualification of some company, the judgment/analysis of the bids, the annulation or revocation of the public tender, the dismissal of an inscription request, the termination of the contracts and applying penalties/sanctions.
Yes. besides the administrative procedures, both the public and private parties may seek injunction measures on courts and claim damages.
Disputes can be heard before State or Federal Courts depending on the entity against which enforcement is sought.
As for the location of the court, it is usually provided for in the contract and normally corresponds to the location of the headquarters of the public entity with which the contract is signed.
Negotiation, mediation and arbitration are still very controversial procedures when it comes to disputes with the public sector.
Administrative appeals against the request for proposal may be presented up to two working days before the bidding procedure is begun.
Administrative appeals against acts of the authorities conducting the bidding procedure may be presented up to five days after a decision was rendered, or 10 days after a decision that prohibits the company to contract with the public administration. Longer terms may be provided in the bid call document.
As for judicial measures, a party has 120 days beginning from performing an administrative act to file a writ of mandamus against such act. The statute of limitations to annual an administrative act through a judicial measure other than a writ of mandamus is five years.
It is worth highlighting that the timing to enforce judicial measures during public procurement procedures has much more to do with the duration of the proceeding than with the statute of limitations. This is because if the procedure is concluded, the contract signed or even terminated, judicial enforcement will be much harder, even if the term to sue has not expired.
Administrative appeals must be presented in the term defined by the Law as mentioned above and must be presented to the right authority according to each case.
Judicial measures, such as Writ of Mandamus, must be presented in the term defined by the Law as mentioned above and also be based on an irrefutable right and unquestionable evidences.
During the public procurement procedure, a review proceeding can be started under the following conditions: (i) existence of an administrative decision on a certain stage of the procedure; (ii) filing of the request within the time limits prescribed by law; (iii) the request must be presented in written form, addressed to the authority that performed the act; (iv) the request must point the defects, misunderstandings or differences that motivated the filing of the review proceeding; (v) only the bidders have legitimacy to start a review proceeding; (vi) the bidder who intends to start a review proceeding should prove that the decision that is appealed against is prejudicial to his interest, as it violates his rights or prejudices his position within the public procurement.
Moreover, once the contract was already signed, administrative appeals, according to Law 8.666/93, must be based on one of the following grounds to be admissible: (i) Qualification or disqualification of the bidder; (ii) Judgement of proposals; (iii) Cancellation or revocation of the bid; (iv) Rejection of the application for registry, its amendment or cancellation; (v) Termination of the contract, in the cases provided by the law; (vi) Enforcement of the penalties of warning, temporary suspension or fine.
Depends on the case. In cases of qualification or disqualification of the bidder and judgment of proposals it the administrative appeal can have an injunction effect (suspension), in the other cases, it will depend on the judgment of the authority.
It also depends on each case. The tender procedure can be cancelled or revoked or a bidder can be disqualified.
There is not a defined term provided for in the law for deciding a judicial proceeding, however, based on our experience and on estimates, a judicial proceeding requesting the review of an act performed by a public authority, including first and second judicial instances, can last from up to 2 to 8 years.
Basically depends on the modality in which the public tender is being conducted. Normally, all participating bidders are notified regarding the acts related to the Public Procurement until the end of the procedure (with the proper execution of the contract with the winner). However, in some cases (such as the electronic reversal bidding), the bidders may follow up the award proceeding through the electronic system at their will.
Yes, especially writ of mandamus filed by a participant unsatisfied with the result of the public tender.
Since Brazil is a civil law country, there are no unique leading decisions that set benchmarks to be followed. However, the majority of court decisions lead to the enforcement of principles provided for in the Federal Constitution or in Law 8,666/93, such as the principle of isonomy, public interest and competition. When a public procurement procedure is challenged in Brazilian courts, the tendency is to privilege these principles and allowing the participation of the biggest possible number of competitors without harming the public interest.