Yes, there are remedies and enforcement mechanisms regulated for the LCE, depending on whether it is a procuring entity or a bidder or contractor who breaches the provisions. First, bidders or contractors are exposed to sanctioning procedures that might be initiated by the Court of Public Procurement. Finally, it is possible that the Court of Public Procurement or the Entity (depends on if the irregularity were before or after signing the contract) can declare the nullity of some acts.
Yes, there are remedies available outside the scope of procurement legislation. In the case of a dispute relating with the contract, for example a breach of contract, the contractor can initiate an arbitration against the procuring entity or vice versa.
In order to determine what forum will hear a dispute, it is necessary to determine the nature of the dispute. If the dispute is between bidders, the dispute will be heard by the Entity Responsible for Supervise Contracting with the State (OSCE). If it is a dispute between the contractor and the procuring entity, the LCE establishes that this contractual dispute shall be resolved by institutional arbitration and in special cases Ad Hoc arbitration. Finally, the Court of Public Procurement can also resolve disputes such as appeals.
In the case of the arbitration, there is not a specific time table regulated by the LCE. The amount of time can be agreed to in the contract. However, in the case of public entities the timing of the procedure shall be determined by the Single Text of Administrative Procedures (TUPA) of the public entity (OSCE). For example, in regards to procedures in front of Public Procurement Court, in principle, the court has thirty business days to review.
Any dispute between the parties on the performance, construction, resolution, inexistence, ineffectiveness or invalidity of the contract is resolved through conciliation or arbitration according to the agreement of the parties. Controversies regarding contract nullity may be solely subject to arbitration. The majority of the arbitration agreements are multi-tiered clauses, for this reason it is necessary to initiate a period of negotiation or a conciliation before the beginning of the arbitration.
There are several admissible grounds for starting a procedure, the most relevant are: violation of the provisions of the LCE or RLCE, the incorrect evaluation of a bid and the contractual breach.
No, bringing a contentious-administrative action (review proceeding by a judge) does not affect an on-going tender procedure or an awarded contract. However, if the judge institutes precautionary measures, these can affect an on-going tender procedure or an awarded contract.
In the case of a successful review proceeding, the winning bidder shall be the party who finished second in the evaluation. If the second place bidder is not available, the winning bidder shall be who the party who placed third in the evaluation.
The judicial proceeding can take approximately three years. This term can change depending on the type of dispute and procedure.
The opening of the bids is in public (economic and technical parts). For this reason, unsuccessful bidders are present when the public entity determinate who is the winning bidder and give the award.
Yes, the review proceeding is common, of course depending on the dispute.