Part IX of the Public Procurement Regulations 2016 (SL 174.04) establishes the procedure to be followed when the tenderer wishes to appeal from the decision of the contracting authority. As a Schedule 3 Contracting Authority, MITA administers and determines its own procurement procedure without the need of approval from the Director. However, MITA does follow the Public Procurement Regulations and thus must abide by the Appeals Procedure established, granting every tenderer a right of appeal in certain circumstances.
Appeals may be made to the Public Contracts Review Board (PCRB) and then to the Court of Appeal.
When does the tenderer have a right of appeal?
The contracting authority is obliged to include information on the legislation outlining the appeals procedure in the tender document. Where the estimated value of a public contract meets or exceeds €5,000, any tenderer or candidate or interested person may appeal to the Public Contracts Review Board (PCRB).
After the decision of the PCRB, if the tender feels aggrieved with such decision, there is the possibility of appealing to the Court of Appeal.
What are the reasons for appeal?
An appeal may be made for the rejection of a tender or the cancellation of a call for tender after the lapse of the publication period or for risk of being harmed by an alleged infringement or decision taken including proposed award in obtaining a contract.
What are the time limits within which an appeal must be made?
An appeal to the PCRB must be made within 10 calendar days from the day following the date when the contracting authority sent its proposed award decision, rejection or cancellation. The contracting authority cannot conclude any contract during these 10 days. If an appeal is eventually submitted, the award process will then be completely suspended until the PCRB has deliberated on the appeal.
An appeal to the Court of Appeal must be made within 20 calendar days from the date of publication of the decision of the PCRB.
Are there any costs involved?
When appealing to the PCRB, the objection must be accompanied with a deposit of 0.50 per cent of the estimated value of the whole tender. In any case, this deposit cannot be less than €400 and not more than €50,000.
In its decision, the PCRB will recommend whether this deposit submitted is to be refunded or not. If it recommends a refund, it is to specify whether in whole or in part.
What is the procedure when appealing to the PCRB?
- The appeal must take the form of an objection, and include clearly the reasons for the complaint.
- The award procedure is suspended, once the secretary of the PCRB notifies the contracting authority of the objection filed.
- The appeal is affixed to the notice board of the PCRB, and communicated to all participating tenderers.
- The contracting authority and interested parties have 10 calendar days to file a written reply to the appeal, from the date when the appeal is fixed to the notice board or uploaded.
- The contracting authority must forward to the chairman of the PCRB all documentation relating to the call for tenders including files and tenders submitted.
- The date of the hearing is communicated to all parties.
- After evaluating the evidence and considering the submission of the parties, the PCRB will decide whether to reject or accept the appeal.
- The decision may be reserved for a later date- the earliest date- but not later than 6 weeks from the hearing.
What is the procedure when appealing to the Court of Appeal?
- The appeal application must be addressed against the contracting authority, the recommended tenderer and other parties involved in the proceedings before the PCRB.
- The contracting authority and other parties have 20 calendar days to file a written reply to the appeal, from date of service of the appeal.
- The date of hearing is set by the Court of Appeal, at the earliest date and not later than 2 months from the date of appeal, and this date is communicated to the parties involved.
- It is the responsibility of the parties to visit the court registry and inform themselves of information of the case.
- Pending the appeal, the process of the call for tenders is suspended.
- After hearing the parties’ oral submissions, the court will decide the appeal on its merits within 4 months from the filing of the appeal and its service on the parties.
- The court may cancel the tendering process if it deems it the best solution in the circumstances.