Procedural information
New Public Procurement Act (further on PPA), that came into effect on January 1st 2008, introduces many novelties in the legal (judicial) protection system. Legal (judicial) protection can be found in the 5th part of the PPA - it is described in articles 134-167. Directions, instructions found here are only an overview of legal (judicial) protection; thus, the users are instructed to use PPA, Public Procurement Act, Official Gazette no. 110/07.
Appeal
Candidate or tenderer, as well as any other economic operator with legal interest to be awarded a public contract in the public procurement concerned, i.e. who has sustained or could sustain damage from the alleged violation of subjective rights, may seek the protection of his/her rights.
The protection of rights may be sought by the Public Procurement Office of the Government of the Republic of Croatia and/or the State Attorney's Office.
The protection of rights is conducted by lodging (filling) an appeal and other requests against decision, action or failure to act, by a contracting authority, where action should have been taken under this Act, and against the procedures to which this Act shall apply. Article 137. of PPA.
Lodging the appeal
An appeal is lodged to the State Commission and filled with the contracting authority in writing, directly or via registered mail, or in electronic form when the conditions for the distribution of electronic documents have been met by both parties in line with the provisions concerning electronic signatures.
The appellant shall, at the same time and in the same manner, submit one copy of the appeal to the State Commission. Article 145. of PPA.
Deadlines for lodging the appeal
The appeal shall be filed within 8 days, which is within 3 days in the procurement of lesser value, following:
- the public procurement's publication, against the information, actions, procedures and failures to act referred to in the publication,
- the tender opening, against the actions, procedures and failures to act relating to the procurement documents and the tender opening procedure,
- the receipt of the decision deliberating upon an individual public procurement right relating to the verification and assessment procedure or the decision,
- the expiry of the time limit for adopting the decision on individual public procurement rights referred to in the previous item,
- becoming aware of a procurement procedure conducted contrary to this Act, and no later than one year following the day the procurement was undertaken.
An appellant who has failed to file an appeal in accordance with the provisions of the above paragraph shall lose its right to question the legality in a later stage of the procedure.Article 147. of PPA
Fee for Conducting the Procedure
In the procedure before the State Commission, the appellant shall, in addition to the administrative tax, also pay a fee for conducting the procedure in the following amounts:
- fee amount of 2.000,00 kuna for the estimated procurement value up to the amounts regulated in the article 128, paragraph 1 of this Act
- fee amount of 5.000,00 kuna for the estimated procurement value that is above the amounts regulated in the article 128, paragraph 1 of this Act, but is up to 2.000.000,00 kuna
- fee amount of 7.500,00 kuna for the estimated procurement value that is above 2.000.000,00 kuna.
Payment is made on behalf of the National Budget of the Republic of Croatia on the giro account number: 1001005-1863000160, purpose of payment: fee for conducting the public procurement procedure, model of payment for legal entity is 21, call number 5037 and identification number of the payer. Evidence of payment shall be presented to the State Commission.Article 159. of PPA
Contents of the Appeal
An appeal shall contain:
- information on the appellant (name and last name, company name, address of permanent residence or seat),
- information on the legal representative or attorney,
- name, company name and seat of the contracting authority,
- the number and the date of the public procurement concerned and the information on the public procurement's publication,
- the number and the date of the decision on selection of the best tender, cancellation of public tendering or other decisions of the contracting authority,
- other information on the actions, failures to act or procedures of the contracting authority which are the subject-matter of the procedure, on the object of procurement, the procurement's inventory number,
- a description of the factual situation,
- a description of irregularities and explanations thereof,
- proposal of evidence,
- the claims of the appeal and/or the claim for reimbursement of the costs of the proceedings,
- the signature and seal of the authorised person.Article 163. of PPA
Rules for Presenting Evidence
In the course of the proceedings the parties shall provide all the facts on which they base their requests or decisions, procedures, actions or failures to act and they shall present evidence in respect thereto.
In the course of the legal protection procedure the appellant shall prove or at least make probable the existence of the facts and reasons concerning its authority to file the appeal, the violations of the procedure or the application of substantive law, referred to in the appeal that he/she is or should be aware of.
In the course of the legal protection procedure a contracting authority shall prove the existence of the facts and circumstances, pursuant to which it passed its decision on rights, undertook actions or failed to act and carried out the procedures which are the subject-matter of the appellate proceedings. Article 139. of PPA
Prohibition against Contract Award
A contracting authority may not execute a public contract or commence its performance within 12 days (that is 5 days in the procurement of lesser value) following the date determined in Article 147, paragraph 2, item 3 hereof (the receipt of the decision deliberating upon an individual public procurement right relating to the verification and assessment procedure or the decision).
An appeal lodged against a decision on selection of the best tender, a decision on the commencement of the public procurement procedure in negotiated procurement procedures without prior publication of a contract notice, the exclusion of public procurement from the application of this Act and the procurement of the public services referred to in Annex II. B, shall frustrate signing of the public contract for all groups or parts thereof of the procurement concerned.Article 138. of PPA
Motion for Injunction
The appellant may, in addition to the appeal, file a motion for determining a security injunction. The object of the motion may be the prohibition to sign the public contract or to perform the contracted obligations which are the object of the concerned procurement procedure, as well as any other measure aimed at prevention of the damage which might be caused should the proposed measure not be adopted.
The appellant must, in the motion for the injunction, prove probable the existence of the circumstances on which the motion is founded. Article 149. of PPA
Request to Continue the Public Procurement Procedure
A contracting authority may, when a motion for determining a security injunction has been put forward, put forward a request requiring approval for the continuation of the public procurement procedure. The request for the continuation of the public procurement procedure shall be submitted at the same time as the response to the appeal and the procurement procedure's documents. Article 148. of PPA
Conciliation
The parties to the proceedings and the State Commission shall endeavour, throughout the entire proceedings, to settle the dispute amicably.
Along with the appeal the appellant shall attach evidence of payment of the administrative tax for conducting the procedure.Article 142. of PPA
Settlement
The parties may, during the entire proceedings before the State Commission, reach a settlement. The settlement agreement shall be entered into the minutes of the proceedings. A settlement reached during the proceedings before the State Commission shall be approved by the council provided that it is not in breach of mandatory provisions of laws or rules of public morality or contrary to the interests of third parties. Article 152. of PPA
Judicial Protection
An administrative suit may be instigated before the Administrative Court of the Republic of Croatia against any decision passed by the State Commission, within 30 days from the receipt of the State Commission's decision. Article 162. of PPA.