11. Procedures for hearing and reviewing complaints/appeals
Are there procedures available for potential suppliers, domestic and foreign, to lodge complaints during any step of the procurement process? Please describe.
Article 61, Section 79 of Decree 5,720/72 (Regulations for State Contracts) establishes a dispute mechanism for the procurement or contracting of goods and services. Interested parties may submit challenges after the preawarding is announced, within a period of not less than three days after the expiration of the term set for the announcement concerned.
Appeals will be reviewed by the authority authorized to approve the contract award, before the final award is granted. It should be kept in mind that awards should be granted within a maximum period of 30 days from the date the bidding is opened (the bidding period). This period will automatically be extended for five days in cases of appeals (Article 61, Section 61 of Decree 5,720/72).
With respect to public works and public works concessions, the Regulations for State Contracts apply.
Bid challenges in relation to goods are generally investigated by the administrative authority and not buy the courts. For services, if they are not resolved amicably, they may be resolved through arbitration. When funds from international agencies are used the appeals may be resolved by the courts and awarded by an international panel. Any complaints by the suppliers may be directed though official letter directly to the procuring entity. International bidders may choose to submit their complaints directly to the respective international financial institution.
There are no specific procedures to be followed during the bidding process. Nevertheless, both local and international suppliers may sue the State for losses related to the termination of contracts.
There are two administrative recourses for suppliers under Bolivian law:
The grievance process is used when the bidders contend that the bidding documents contain insurmountable errors, anticipated exclusions or illegitimate preferences that constitute discrimination. This recourse is presented to the contracting agency and the agency's executive authority settles the case, as a last resort without any further administrative recourse, acknowledging or denying the grievance.
The grievance must be presented within ten days of the initiation of sale of the bidding documents, including a bank deposit slip from the contracting agency's account, valid for 30 working days, for the equivalent of 50% of the security deposit guaranteeing the seriousness of the proposal.
If the grievance is accepted, a new date will be set for the presentation of bids, the documents will be corrected through amendments or clarification notes and the security deposit is returned to the bidder. If the grievance is denied, the contracting agency keeps the security deposit and the bidding process continues.
The appeals process is the legal recourse for contesting the legitimacy of a contract award, when there are allegations of irregularities in the evaluation of bids or in the justification given for the awarding of the contract.
Only those bidders whose proposals were evaluated may appeal the awarding of the contract within five working days following their official notification. A security deposit slip in the amount of 1% of the proposal must be presented and must be valid for a period of 45 calendar days from the date the appeal is presented. The appellant should have access to all information regarding the award being appealed as long as the confidentiality of the proposal is not violated.
The appeal will suspend the contract processing.
The appeal is presented to the agency which granted the award so that the superior authority, be it an individual or a tribunal, may resolve the case.
Within a fixed period of five working days, counting from the date the appeal was presented, the agency in question must submit the appeal to the superior authority, including background information on the award and pertinent reports.
The superior authority must make a decision within ten working days of receiving the documentation, and it is the last resort, with there being no subsequent administrative recourse.
The appeal will have the following effects:
The system of administration of goods and services of the Ministry of the Treasury, the administrative authority, will be notified of all appeals, whether accepted or denied, and this information will be published. If three appeals are denied, the administrative authority will declare the temporary ineligibility of the entity to judge appeals for a period of one year.
In every phase of the bidding process required by Law 8,666, challenges or appeals may be made or court orders requested in order to redress possible damages resulting from errors or discrimination. In this case, there are various laws and regulations in addition to Law 8,666, which are aimed at guaranteeing democratic and lawful processes. The Bidding Commission of the contracting entity is the first recourse for such an appeal, but the supplier may also appeal directly to the judiciary. The time limits for appealing are established by Law 8,666 and may be complemented by regulations of the contracting entity. Appeals generally have the effect of suspending the process and may eventually annul a contract in execution. Article 109 of Law 8,666 is the main instrument of legislation for these cases:
Article 109 - Administrative proceedings, which may be appealed under this law are:
First paragraph - Notification of those events referred to in Section I, lines a, b, c, and e of this article, excluding those related to warnings or fines for delays, in Section III, will be made through publication in the official bulletin, except for those cases specified in lines a and b, proposals presented by the bidders in the act in which the decision was adopted, and when this can be done by direct communication with the interested parties.
Second paragraph - Appeals in cases specified in lines a and b of Section 1 of this article, will lead to a suspension of the proceedings if the presiding authority deems it in the public interest.
Third paragraph - Once the appeal is made it will be communicated to the other bidders so that they may respond within a period of five working days.
Fourth paragraph - The appeal will be directed to the superior authority, and the decision will be reconsidered within a period of five working days (or within the same period); will be elevated, in this case, providing notification of the decision within a period of five working days upon receipt of the appeal.
Fifth paragraph - The period of the appeal, representation or request for reconsideration will not begin until the respective documentation is shown to the interested party.
Sixth paragraph - With respect to bids carried out under the model of carta convite [invitation letter], the periods established in Sections I and II of the third paragraph of this article will be two days.
A bid challenge process allows any potential supplier to complain to an impartial reviewing authority, at any time throughout the procurement cycle, on how government procurement is being handled.
The Canadian International Trade Tribunal has been designated as the independent bid challenge authority for Canadian federal government procurements that are subject to the Agreement on Internal Trade, the North American Free Trade Agreement, and the World Trade Organization - Agreement on Government Procurement.
For procurements outside the trade agreements, each purchasing department usually has its own appropriate procedures to deal with complaints.
The CITT is a quasi-judicial administrative tribunal with powers equivalent to a superior court of record to enforce orders within its jurisdiction for:
The CITT has jurisdiction to postpone the award of a contract and to order a government entity to pay a successful complainant's bid preparation and complaint costs. It can also recommend forms of redress and changes to government policies and procedures. A complainant may appeal the CITT's findings to the Federal Court.
The public sector in Chile, in practice, has a decentralized procurement system. Each agency, company and municipality conducts direct procurement in the market according to its own regulations and procedures. Consequently, the bid challenge procedures vary from one entity to another. Challenges to the bidding process are usually handled in the following manner:
The Constitution establishes the recourse of protection before the Superior Court of Justice (Court of Appeals) when there is a violation of constitutional guarantees, including the arbitrariness of public officials. The procedures are extraordinary, brief and summary.
Without impediment to the above procedures, the public sector procurement process has the following checks: institutional and governmental checks, audits under the Auditor General of the Republic (CGR) and the political check of the Chamber of Deputies.
The law offers distinct dispute mechanisms to which both national and foreign contractors may resort in order to defend their contractual rights.
This can be done before the administrative bodies themselves, through the government, by way of direct or out of court settlements or finally through the courts.
With respect to the administrative or governmental viewpoint, the law establishes the following mechanisms:
With respect to those direct and out of court resolution mechanisms, the law establishes the following:
Costa Rica?s Administrative Contracts Law establishes that it is possible to object the bidding documents in open tendering procedures or the in the limited tendering, within the first third part of the period to present offers. In the first case the appeal is presented before the Contraloría General de la República and in the second case before the procuring entity. Any potential bidder or its representative may use this remedy when it is deemed that there has been irregularities in the procedures, there has been a violation of the fundamental principles of have been or regulations on this subject have been broken. In addition, any entity legally established to be vigilant in the interest of the community where the contracting will be carried out or take effect is entitled to make objections to the bidding documents. This remedy has to be resolved by the revising authority within ten working days of its presentation; in the case that no decision is issued in that period, its is deemed that the objection was accepted.
Against the award of the contract the remedy is the appeal, which is presented according to the threshold established in Article 84 of the aforementioned law. In public works procedures, the appeal only proceeds if the awarded amount is higher than that of the threshold that applies for open tendering procedures. This remedy has to be presented before the Contraloría General de la República within ten working days after the publication in the Official Gazette. For this purpose, any person with an actual, direct, proper and legitimate interest in the outcome and also any third parties that have presented offers, in representation of another party, are entitled to appeal. In such cases, the Contraloría General de la República shall, within ten days, accept or reject the appeal. Such faculty can be exercised at any time of the proceedings. If it was deemed that there was no reason to appeal, the procuring entity will enforce the guarantee having also the faculty to claim eventual damages if these are superior to the guarantee.
The appeal has to be reasoned, and in case of a disagreement of technical analysis, these should be disputed with studies that are similar in nature. The time limit to resolve the appeal is 30 working days after the initial notification order to the respondent. This time limit may be extended if it was of special importance to reach a judgment to hear the opinion of an expert or to conduct expert studies to determine a certain fact and because of its complexity it can not be produced within the aforementioned time limit (30 days).
The final judgement gives end to the administrative proceedings. Within three days after the communication, the interested party may appeal this decision before the Tribunal Superior Contencioso Administrativo, which is regulated by Article 89 and 90 of the Administrative Jurisdiction Law. It is important to mention that if the contract that has been appealed is currently being executed or has been already executed, a favorable judgement for the petitioner may only recognize the damages caused. In cases where the appeal does no proceed based on the amount of the contract, the revocation of the award may be requested within five working days after the communication of such award. However, when the entity?s official in charge has not adopted the award, the interested party may file its appeal before the respective official. This appeal is presented before the entity that has given the award. If the appeal is not declared improcedent or inadmissible, the awarding party will be notified 48 hours after the presentation, so that the he can pronounce himself on the appeal. The entity shall issue its judgement 15 days after the appeal was answered. This judgement ends the administrative proceedings and may be challenged, without suspending the award procedure, within three working days after its notification, through the procedure regulated by Article 89 and 90 of the Administrative Jurisdiction Law. If the contract that has been appealed is currently being executed or has been already executed, a favorable judgement for the petitioner may only recognize the damages caused.
The Concession of Public Works Law and its regulations establish that the bidding documents may be objected within the first third part of the period to present offers. In case that the objection is over what is provided in Section 4 of Article 41 of the regulations, the objection has to be presented within the first third part of the period that goes between the publication and the day scheduled to present offers. The Contraloría General will issue its judgement within the second third part of the indicated time limit and will communicate it to the entity and the petitioner.
The order issued by the Contraloría, which upholds the appeal, is mandatory for the entity, without prejudice of the sanctions applicable against government officials. The non-observance of this judgement may produce the partial or total nullification of the proceedings. The entity is obliged to publish a notice informing on the amendments made according to the time limits of Article 24 of the regulations. If the publication is not possible in the specified period of time the bidding procedures will be cancelled.
Against the administrative award, the appeal before the Contraloría General proceeds in conformance with the Administrative Contracts Law, which is the law currently in effect.
Administrative Contract Law Number 7,494 of May 3, 1995, establishes in Article 84 that the appeals process applies in the following cases:
In public works contract proceedings, the appeal is only warranted when the awarded amount is more than the amount that applies to public bidding procedures.
The appeal recourse, duly documented, will be presented before the Contraloría General de la República within ten calendar days following the published agreement in the Official Newspaper.
The appeal amounts mentioned in this article will be adjusted according to the criteria provided in Article 27 of this law; the established parameters in international law prevailing in Costa Rica will also be taken into consideration.
Section (g) of this Article was developed as indicated in Resolution N. 1-DEE-96 of April 26, 1996, of the Contraloría General de la República. The Resolution establishes the economic limits in the following manner:
For administrative proceedings whose usual budget is lower than US$1,185,983.4, the appeal recourse against the bidding process applies in the following cases:
The estimation of amounts in colones converted into American dollars is based on the dollar sale price as of May 1, 1997, which was 228.73 per dollar.
The Law on Public Bidding only establishes the possibility of challenging those contracts that have been granted on grounds of nullity. Challenges may be presented by any person to the maximum authority of the contracting entity, to the Auditor General of the State and the Ministry of the Treasury, accompanied by supporting documentation. If grounds to the challenge are found, any of the above mentioned authorities may initiate the corresponding nullification procedures.
The grounds for nullity are specified in Article 63 of the Law on Public Bidding.
The procedure for handling such objections is established by the Auditor General of the State and the Attorney General of the State by mutual agreement.
It is necessary to note that, according to Article 40 of the regulations issued under the Law on Public Bidding, tables and reports prepared by the technical commissions are made available to the bidders who may formulate written clarifications to said documents related exclusively to their bid, which is then taken into account by the corresponding award committees.
The suppliers who do not agree with the final procedure for the appropriation contract have the recourse of appeal the pronounced outcome, offered by the representative, before the Chief of the Primary Unit of Organization. However, they must approach the representative with this appeal within 24 hours of the notification of the rejection. This recourse and the amount of time allowed vary according to the individual institution. If the administrative route is not a possible one, actions may also be taken through the jurisdictional route, in accordance with the internal legislation of the country.
The clarification and expansion are the recourses for challenges to contract awards made by the Bidding Authority Pricing Commission [Junta de Licitaciones, Comisión de Cotizaciones].
The revocation is the recourse used against administrative proceedings which have already been concluded.
The period for submitting the above recourses is the three days following notification of the decision.
In all cases filed derived from the application of the Public Contracting Law, once the conciliatory phase among the parties is over, the authority shall dictate the resolution that renders the administrative proceeding finished. Against this resolution, the affected parties may file the revocation recourse, within three days after the resolution has been notified.
Every conflict related to the failure to comply, interpretation, application and effect of the contracts, guarantees and insurance in relation to the application of the present law will be submitted the jurisdiction of the Administrative Code Tribunal after reconciliation and administrative proceedings have been exhausted.
Parties may lodge complaints against any aspect of the procurement process to the Fair Trading Commission or the Contractor General.
There are no official time limits for complaints.
The types of remedies granted include suspension of procedures prior to award, overturning contract, and damages, all by Order of the Court.
In Mexico, the Ministry of the Comptroller [Sectretaría de Contraloría y Desarrollo Adminstrativo/SECODAM], through its office of the General Directorate on Bid Challenge is the only administrative entity authorized to review and adopt resolutions related to bid challenge procedures subject to the Law on Procurement and Public Works as well as those derived from commercial agreements subscribed by the Mexican government. Nonetheless, prior to this, interested parties may express their opinions to the contracting agency regarding irregularities in the bidding process so that they may be corrected.
Bid challenge proceedings may be initiated by any persons or companies who believe their rights have been violated, whether it be from the contract awarding or in any stage of the bidding procedure, beginning from the moment in which the call for bidding was announced until the contract was awarded.
The objection should be presented in writing to the General Directorate on Bid Challenge within ten working days after the day on which the challenged act or acts occurred, or after the moment in which the petitioner was aware of it. When the interested party first submits a challenge to the contracting entity this does not alter the period in which the objection must be presented to SECODAM.
The challenged proceedings should be declared under protest of the truth.
The General Directorate on Bid Challenge may render the following decisions: Nullification of the procedures from the point in which the challenged act or acts of irregularity occurred, nullification of recommendations made by the contracting entity establishing the necessary guidelines so that they may be made in conformance with the law, total nullification of the proceedings or the declaration of the irrelevance of the complaint.
Once the decision of the General Directorate on Bid Challenge is handed down, a supplier may appeal to the ombudsman office of SECODAM [Subsecretaría de Atención Ciudadana y Contraloría Social] within 15 working days from the date notified of the decision.
Bid Challenges presented before a court of justice, prior or after the presentation of the same bid challenge before SECODAM, shall be considered as an exception to this procedure.
Bidders may present their observations or challenges to the Evaluation Committee (the Administrative Body), within five working days after notification in written form to the responsible ministry or authority of the contracting entity.
The report prepared by the Evaluation Committee may be appealed before the Audit Committee (comité revisor) and the Auditor General of the Republic.
The maximum authority (the Auditor General of the Republic) may announce the suspension of procurement or bidding and may also declare a process invalid when it is concluded that there are anomalies in the bidding process or awarding of the contract.
Challenges may be presented at any stage of the bidding process. Nevertheless, once the contract award is made, the appellants must submit their challenge within five working days to the contracting entity where decision is rendered. An appeal may also be made the Supreme Court of Justice Sala Tercera. According to Decree Number 18 (January 25, 1996) challenges presented are remanded.
When there is a contractual relationship between the entity and the qualified supplier, the law establishes arbitration as the means for dealing with disputes, which is stipulated in the Judicial Code.
Suppliers of any type have the recourse of reconsideration before the maximum authority of the contracting entity. Furthermore, if the supplier is not pleased with the outcome there is a judicial recourse as established by the Administrative Code, the Official Auditing Office and finally the Supreme Court of Justice.
Procurement of goods and services
Bidders may present challenges at any moment in the bidding process according to the following procedures:
An objection to irregularities or defects in the proceedings is presented before the head of the administrative division of the contracting entity. The complaint should be resolved within a three day period, before the issuing of the report by the agency. The complaint, however, does not suspend or delay the process and its resolution is communicated to the interested party.
Challenges are presented before the Award Committee presiding over the call for bids and must be resolved within 24 hours. In the case of direct contracting, the challenge is presented to the Director or Chief of Supplies.
Challenges to the decisions of the Award Committee may be submitted for the following reasons:
The following are bid challenges:
The reconsideration challenge must be submitted within three days after notification of a decision. The Award Committee must hand down its decision in three days.
An appeal must be made within five days after notification of a decision. It should be resolved by the second in command of the contracting entity within a five-day period.
Revision may be requested within five days after notification of a decision. The Departmental Procurement Committee must resolve the challenge where the call for bidding took place within an eight-day period.
The appeals and revision recourses require the submittal of a check from the management to the Departmental Procurement Committee in the amount equivalent to 10% of the amount awarded.
Only appeals may suspend the contract award process.
Construction (bidding) of works
Considering the fact that calls for bidding or public price bids may not be appealed on the day they are published in the official bulletin El Peruano, any challenge to the bidding may be submitted validly only the day after said publication. Challenges made before said date will not suspend the bidding proceedings and will be declared inadmissible by the contracting entity.
Those recourses for submitting challenges to the awarding of a contract are:
a. Recourse of reconsideration: This is resolved by the contracting entity. Any bidder who is not satisfied with the decision adopted by the contracting entity may request the agency to reconsider, and a decision must be rendered within a two-day period following the contract award or publication of the contract award.
Within a two-day period, the contracting agency must notify the chosen bidder of the challenge, who has the right to present a position regarding the challenge to the agency within a period of two days from having received the official communication.
The contracting agency, with or without the position of the chosen bidder, must render a decision within a period of six days, counting from the date the challenge was received. The decision must be notified in writing to both the appellant and the chosen bidder.
If the decision is not notified within the specified time period, the appellant assumes that the challenge has been denied and then may appeal to the Superior Council on Bids and Public Works Contracts (CONSULCOP).
b. Recourse of review: will be submitted to CONSULCOP for resolution as a last resort of administrative appeal.
If the appellant or chosen bidder is not in agreement with the decision of the contracting agency, an appeal for review, directed to the president of CONSULCOP should be submitted within two days following the date in which the decision taken with regard to the recourse of reconsideration. A letter of guarantee, unconditional, irrevocable and automatically executed, must be submitted in the name of CONSULCOP, in an amount equivalent to 1% of the amount of the base budget and for a period of validity of 30 days, without which the appeal will not proceed.
Within a two-day period after the submittal of the recourse of review, the contracting agency will send the complete file to CONSULCOP, which will serve as the last administrative resort. In a period of four days of receiving them, said materials will be returned so that the executing agency may comply with the decision.
If the appeal is unfounded, CONSULCOP will keep the security deposit. If the opposite occurs, the money will be returned.
In the case of a withdrawal of the appeal, CONSULCOP will keep the security deposit according to Communication Number 01.95.TL.
The recourses of reconsideration and review will be authorized by an attorney, and it is not necessary to attach any tax stamps such as boletas or papeletas.
The Ministerial Resolution Number 251-89-VC.1200 (August 10, 1989) established that the current tax unit, the appellants paid to CONSULCOP upon submitting their recourse of review of any nature even, without detriment to those RULCOP and complementary resolutions have set.
Recourses of review not accompanied by the receipt for payment of such tax will not be accepted.
With respect to the presentation of the security bond, Supreme Decree Number 019-90-VC establishes that in those cases in which the bidder must attach a security bond, three additional working days are granted for its submittal. Once the period expires, and the bond has not been submitted, the appeal will not be accepted.
On the other hand, it is important to point out that, according to Communication Number 001-88-VC-9100 of CONSULCOP, the omission in the compliance with the formal requirements referring to the obligatory presentation of appeals accompanied by the signature of an attorney and others should not affect the right to defense, which has constitutional precedence, by which the administrative authorities may permit its oversight, upon requirement.
With respect to the contract award, this will be suspended until the specified periods for submitting tax resources to RULCOP and in case these were submitted, until the corresponding resolution is promulgated.
Arbitration and judicial means
In any stage of the bidding process, parties may submit a dispute to arbitration.
Appeals to decisions handed down by CONSULCOP may only be submitted through judicial channels before the appropriate chamber of the Superior Court of Lima within 15 days of notification or publication of the decision. At the same, the decisions of this court may be appealed to the Court of Administrative Law of the Supreme Court of the Republic.
TRINIDAD AND TOBAGO
No written procedures are available. The same principle applies to the central government entities.
There are procedures available for potential suppliers, domestic and foreign, to lodge complaints during any step of the procurement process. These apply to all U.S. Federal executive entities. An interested party can protest: (a) a solicitation or other request by an agency for offers for a contract for the procurement of property or services; (b) the cancellation of the solicitation or other request; (c) an award or proposed award of a contract; (d) a termination or cancellation of an award of the contract, if the written objection contains an allegation that the termination or cancellation is based in whole or in part on improprieties concerning the award of the contract.
The interested party can file protest with the General Accounting Office (GAO). The GAO issues its recommendation on the protest within 125 days from date of filing of the protest with GAO, or within 65 days under an accelerated review procedure. The GAO can suspend the procurement process while it reviews a case to ensure that all suppliers? interests are not prejudiced.
For controversial issues that arise under a contract, the contractor and the Federal government entity are encouraged to resolve the issues through mutual agreement ? alternative dispute resolution. A contractor also has the option of filing a claim with the contracting officer and filing an appeal with the Agency Board of Contract Appeals or a suit in the Federal Court of Claims.
To present appeals, suppliers may utilize mechanisms established in Article 62 of TOCAF, Article 317 of the Constitution of the Republic and in Law 15,869 of the Basic Law on the Court of Administrative Law (June 1987). Administrative proceedings related to bidding procedures may be appealed through the recourses corresponding to the conditions and terms prescribed by the constitutional and legal procedures regulating the matter.
The Basic Law on Administrative Procedures establishes the possibility of suppliers appealing administrative proceedings, which violate their subjective rights or legitimate personal and direct interests; these recourses are those of reconsideration and review, which are administrative processes which are brought against administrative authorities. On the other hand, the Bidding Law establishes the possibility of a supplier who has been adversely affected in those cases specified in Article 7 of the law being paid the sum equivalent to the amount of expenses incurred in participating in the selection process.