Royal Legislative Decree 3/2011, on public sector contracts, envisages different remedy procedures for the claim of the Contracting Public Body in the phases of preparation and awarding of the public tender:
- For harmonized contracts (those exceeding a fixed amount that are subjected to European legislation) Special Administrative Appeal on the award of public contracts and Special Administrative Procedures to nullify the whole process , may be followed.
- For non harmonized contracts, Ordinary Appeals may be pursued.
The remedies exposed above constitute what is called "administrative remedies", however, in procurement procedures it is also possible to appeal before Courts (unattended claims before public bodies and those concerning compliance with contract obligations may be brought before the courts). To this effect, Administrative Litigation Courts are those competent to resolve disputes concerning: (i) the preparation, award, effects, compliance and termination of administrative contracts; (ii) the preparation and award of private contracts entered into by public administrations; and (iii) the preparation and award of certain contracts of entities which are not considered public administration bodies but are considered "Awarding Authorities". Administrative Litigation Courts are also competent to resolve appeals filed against resolutions by public bodies.
Those contracts concluded with entities which are not considered public administration bodies but are considered "awarding authorities" (contracting authorities) are considered "private contracts" whose award procedure is subject to public procurement rules. Therefore, disputes that arise between the parties over the effects, compliance and termination of these contracts may be followed before Civil Courts. Apart from that, they can also be submitted to arbitration (The bid call should envisage this possibility).
Finally, it is not possible to enforce any civil law damage claim against the Administration, since the exercise of legal actions for Administration's Patrimonial Liability, are followed before Administrative Litigation Courts.
Special Administrative Appeals must be treated by Independent Administrative Bodies, created specifically for this purpose (e.g. Tribunal Administrativo Central de Recursos Contractuales). Ordinary Administrative Appeals shall be treated by the contracting entity.
Appeals before the courts involving the resolutions of administrative bodies must be treated by General (not specific) Administrative Litigation Courts.
Yes, but the limit for lodging each appeal is different:
- For Special Administrative Appeal on the award of public contracts, parties have 15 working days.
- For Special Administrative Procedures to nullify the whole process, the law foresees 30 working days.
- For Ordinary Appeals, it has been set a deadline of 1 month.
- For Judicial Claims, the law establishes a 2 months term.
To lodge a Special Administrative Appeal it is required to notify to the contracting authority the intention to appeal. Additionally, in some regions a tax must be paid. This communication is not necessary in Special Administrative Procedures to nullify the whole process and Ordinary Appeals.
On the other hand, it is worth to mention that judicial review may be sought only after opportunities for administrative review have been exhausted.
There are many grounds that parties can invoke in a review procedure, however, they can be summarized in two groups: (i) appeals based on a breach of public procurement rules, and (ii) appeals based on the inclusion of some technical aspects that infringe the legal principle of equal treatment and equal opportunity (which in fact it is a breach of the public procurement rules). Inadmissible direct awards are the most drastic violations of procedural rules and are therefore an admissible ground for initiating review proceedings.
As a general rule, the submission of a review proceeding does not automatically entail the suspension of the contract award procedure, therefore parties have to request it as a precautionary measure (the deadline to submit offers cannot be suspended). However, the Special Appeal against the awarding resolution automatically suspends the procedure.
If the suspension of the procurement procedure has been agreed, there are no consequences of a successful review beyond the nullity of the appealed act, and the obligation to repeat it.
The resolution of a review proceeding may declare null and void the appealed act, and, if so, declare the obligation to take the actions back to the last valid act. It may also include a compensation for damages.
Finally, as judicial review tend to last years, it is possible that at the time of ruling the judgment the bidding has finished and the contract had been awarded and performed, so taking the proceedings back is almost impossible. In those cases, judicial decisions usually establish a compensation for damages.
First instance judicial proceedings for review easily take 2 years, and in case of getting to the Second instance, it could take up to 5 years.
The excluded bidders would have to be notified as soon as the decision is taken. And the awarding resolution must be notified to the bidders (or published in the online platform), but once it has been issued, not before. The contract can not be formalized before 15 days elapse from said notification to allow frustrated bidders to submit the eventual Special Appeal.
No, they are not very common. That is because damage claims usually are exercised in judicial reviews and it is not common to appeal before the Courts in these cases (keep in mind that judicial review may be initiated only after opportunities for administrative review have been exhausted, and that they take, at least, 2 years).
Although in practice there are many disputes in Spain that never reach the trial phase, there are indeed a number of very important rulings by the Spanish Supreme Court involving procurement disputes, which are followed by lower courts across the country. The following may be mentioned in this regard: the ruling of 5 January 2009, in Telefónica Móviles España, S.A. vs. Spanish State General Administration, on the termination of a public contract for the management of the public service for the establishment of a telecommunications network, based on the contractor's infringement; and the ruling of 9 April 2008, ESAVE, S.A. vs. Spanish State General Administration, on the termination of a public contract for the management of the public service of building security services, based on the contractor's infringement.