© OECD A joint initiative of the OECD and the European Union, principally financed by the EU THE CAPACITY TO SUE IN PUBLIC PROCUREMENT REDRESS PROCEDURES Marija Cvrlje, LL B Vice President Conference on "Public Procurement Review & Remedies Systems“ Dubrovnik May 07

© OECD A joint initiative of the OECD and the European Union, principally financed by the EU A party is an individual - at whose request a procedure is launched or - against whom a procedure is conducted or - who is entitled to participate in a procedure to protect its rights or legal interests

© OECD A joint initiative of the OECD and the European Union, principally financed by the EU A party is an individual - at whose request a procedure is launched – ACTIVE PARTY - against whom a procedure is conducted– PASSIVE PARTY - who is entitled to participate in a procedure to protect its rights or legal interests – INTERESTED PARTY

© OECD A joint initiative of the OECD and the European Union, principally financed by the EU The conditions for a party to act are: l Capacity of the party (capacity to bear rights and obligations) l Procedural capacity (capacity to independently engage in procedural activities) l Legitimacy of the party’s motive (legitimatio ad causam – existence of a link between specific persons with the matter at hand)

© OECD A joint initiative of the OECD and the European Union, principally financed by the EU The capacity for action by a party are essential procedural prerequisites; for the entire duration of the procedure, the body conducting it is obliged to ensure whether the individual appearing as a party is duly capable of participating in said procedure

© OECD A joint initiative of the OECD and the European Union, principally financed by the EU Who are the parties to a public procurement procedure? 1. Contracting authority 2. Bidder 3. Participant 4. Interested commercial entity

© OECD A joint initiative of the OECD and the European Union, principally financed by the EU When someone becomes a participant in a public procurement procedure 1. Contracting authority – pursuant to plan and decision by authorized official to establish commission of experts 2. Bidder – by submitting bid, only if submitted prior to deadline

© OECD A joint initiative of the OECD and the European Union, principally financed by the EU 3. Participant – in selective procedures or direct negotiations with announcement/ delivery of application for participation in public procurement procedure. Participants demonstrating qualifications are entitled to submit bids. Participants unable to demonstrate qualifications are also entitled to delivery of the selection decision, which the contracting authority is obliged to deliver.

© OECD A joint initiative of the OECD and the European Union, principally financed by the EU 4. Interested commercial entities – (in direct negotiations without announcement of invitation) – all commercial entities that demonstrate their interest Interest is any potential benefit that any party may obtain from rendering of the requested legal redress.

© OECD A joint initiative of the OECD and the European Union, principally financed by the EU Who can appeal? In open, selective and direct negotiation procedures with announcement of invitation – only participants in the procedure In direct negotiation without announcement of invitation – interested commercial entities

© OECD A joint initiative of the OECD and the European Union, principally financed by the EU Bidder – bid submitted (Article 50 of Public Procurement Act) Complaint submitted to contracting authority within 3 days after receiving selection decision (Article 70(1) of Public Procurement Act) The complaint must be timely, allowable, and issued by the authorized person

© OECD A joint initiative of the OECD and the European Union, principally financed by the EU Response to complaint (Article 70(6) of Public Procurement Act) or non-response to complaint (Article 71(3) of Public Procurement Act) Appeal to State Commission for Supervision of Public Procurement Procedures, photocopy concurrently sent to client. Appeal – allowable, timely and issued by the authorized person.

© OECD A joint initiative of the OECD and the European Union, principally financed by the EU Direct negotiations – direct deal without prior invitation to bid (NAB 44) Every commercial entity that has an interest in this procurement or may incur damage (Article 70(2) of the Public Procurement Act) Complaint deadline – 8 days after announcement in Croatia’s official journal, Narodne novine

© OECD A joint initiative of the OECD and the European Union, principally financed by the EU Appeal – timely, allowable and issued by authorized person, with photocopy concurrently sent to client Submit formal and substantive evidence pertaining to procurement matter

© OECD A joint initiative of the OECD and the European Union, principally financed by the EU Selected bidder/party to procedure response to appeal

© OECD A joint initiative of the OECD and the European Union, principally financed by the EU Administrative suit Prerequisite is existence of administrative action Appeal filed Administrative action – cause for emergence of administrative suit, conducted as dispute between parties.

© OECD A joint initiative of the OECD and the European Union, principally financed by the EU Parties in administrative suits Three types of parties: 1. Plaintiff 2. Defendant 3. Interested third parties

© OECD A joint initiative of the OECD and the European Union, principally financed by the EU Plaintiff Right to sue Possibility of violation of a right or direct interest based on law

© OECD A joint initiative of the OECD and the European Union, principally financed by the EU Defendant The authority whose action is contested, the originator of the administrative action

© OECD A joint initiative of the OECD and the European Union, principally financed by the EU Interested third party Allow redress of procedural rights (delivery of suit for response, submit evidence, etc.)

© OECD A joint initiative of the OECD and the European Union, principally financed by the EU Draft for new Public Procurement Act Parties to redress: - Participant or bidder in public procurement procedure, and any other commercial entity with a legal interest in securing a contract in this public procurement, - Croatian Government’s Public Procurement Office and/or Public Prosecution.

© OECD A joint initiative of the OECD and the European Union, principally financed by the EU The Croatian Government’s Public Procurement Office and Public Prosecution may file an appeal They have the status of parties provided that they report their participation

© OECD A joint initiative of the OECD and the European Union, principally financed by the EU Appeals in all phases of public procurement – any commercial entity that may have an interest Submitted to State Commission via the contracting authority

© OECD A joint initiative of the OECD and the European Union, principally financed by the EU An appeal is announced within 8 days after the date of: l Announcement of public procurement l Opening of bids l Receipt of decision on individual right l Expiry of decision-making deadline l Learning that procurement procedure conducted in a manner contrary to the Act

© OECD A joint initiative of the OECD and the European Union, principally financed by the EU The appellant who fails to file an appeal in compliance with the aforementioned provisions forfeits the right to seek a review of legaility in subsequent procedural phases

© OECD A joint initiative of the OECD and the European Union, principally financed by the EU Administrative suit Same rules apply

© OECD A joint initiative of the OECD and the European Union, principally financed by the EU THANK YOU FOR YOUR ATTENTION! Marija Cvrlje, LL B Vice President