THIS POST provides a summary overview of the national public procurement appeals legislation and procedure.
Procedure
Appeal before the CPC
The procedure for appeal of decisions and actions of a contracting authority is set out in the Bulgarian Public Procurement Act (PPA).
Submission and admissibility
Complaints against decisions of the contracting authority can be submitted before the Bulgarian Competition Protection Commission (CPC) within a period of 10 calendar days of the receipt of, among others, the decision for selection of the contractor or for termination of the public procurement procedure.
A complaint against the decision for selection of a contractor suspends automatically (by operation of the law) the public procurement procedure until the final settlement of the appeal proceedings, unless preliminary execution of the decision has been authorised.
A statement of appeal must be prepared in Bulgarian language and must be accompanied by the supporting documents and evidence required by the law.
The complainants are entitled to mark the information contained in their appeals or in the supporting documents, which they regard as confidential as protected trade/business secrets.
The CPC collects such documents and information in separate files and they are not available to the other participants of the proceedings or to the public.
In case a complaint is found incomplete, the CPC will require from the complainant to provide the required missing information, documents and evidence within 3 days. Such requests generally stop the clock until all required information is submitted. If the complainant fails to provide the requested information or documents within the specified term, the CPC shall consider the appeal inadmissible.
CPC proceedings
The CPC opens a formal case on the appeal within 3 days after the receipt of the appeal, or where relevant, after the receipt of the additional information and documents requested. The President of the CPC appoints a reporting commissioner (reporteur) who will supervise the dedicated working group of CPC experts.
The CPC sends an official written notice to the contracting authority and within 3 days the latter must send the tender documentation to the CPC together with a written opinion on the appeal(s) and other relevant evidence, if necessary.
The CPC will normally send requests for information/questionnaires to the other participants in the appealed public procurement procedure and invite them to submit a written opinion on the appealed decision.
Participants, who demonstrate sufficient interest and who may be (negatively) affected by the annulment of the appealed decision, will be notified of the received appeals and invited to join the proceedings as third interested parties. Such third parties may have limited access to the case file except for the documents that are marked as confidential (i.e. documents including commercial or industrial secrets) and may be present (or represented) and make statements at open hearings.
Written and oral evidence (documents and witness statements) is permitted in the CPC proceedings in support of the appeals as well as expert opinions. However, in practice witness statements and expert opinions are rare.
If more than one admissible appeal is submitted and the CPC opens more than one case with regard one and the same decision of the contracting authority, the CPC will ex officio join all cases and inform all parties.
If the pending cases are joined, the CPC will send a written notice to the parties. Then the CPC will send information requests/questionnaires to the contracting authority and all concerned persons (e.g. other participants in the tender, including the participant whose bid has been ranked as winning). This would normally happen within a week time after the opening of the last of the joined cases.
In the next weeks the CPC’s working group would normally review the case or joined cases and prepare a preliminary decision. When ready, the CPC President will schedule date for an open hearing, and CPC will send written invitations to the parties.
Then the parties will have several days to request access to the CPC file (including the other participant’s complaints and supporting evidence). They will be allowed to review at the premises of the CPC only documents that are not marked as confidential, i.e. often the participant’s bids are marked as confidential and would not be available for review by the other participants.
The parties may submit additional evidence at the latest by the end of the working day before the day of the open hearing.
Request for preliminary implementation
In case a decision for selection of the contractor is appealed, the contracting authority may (within the 3-day period – see above) request from the CPC in writing to permit the preliminary execution of the appealed decision. If such a request is made after the 3-day deadline, it shall not be reviewed. The CPC resolves on the request by a ruling in a closed session within 3 days from the receipt of the contracting authority’s opinion on the appeal.
As a rule, preliminary execution shall be permitted only in exceptional circumstances, e.g. public health, particularly important State or public interest, national defence and security, or in cases where a delay in the implementation of the decision may result in significant or irreparable damages.
The CPC ruling is subject to judicial appeal before the Bulgarian Supreme Administrative Court (SAC) within 3 days after its announcement to the parties. The SAC resolves on such appeals in a closed session within 14 days after the opening of the court proceedings.
Open hearing
After the CPC working group finalizes its analysis the parties will be granted access to the non-confidential documents in the file at the premises of the CPC. A written request to the CPC’s secretary general and a lawyer’s power of attorney will be required.
The parties will be invited to attend the open hearing on their case and they can submit evidence in support of their appeal or in defence against the appeal(s) at the latest on the day before the open hearing day.
At the open hearing, the parties’ representative(s) will usually have up to 5 minutes each to plead the main arguments in their appeal/defense. It is a common practice to submit written notes. The notes should be concise and straightforward. However, the CPC has often made its mind before the open hearing and such additional notes would rarely influence the decision. Such written arguments (and underlying evidence, if submitted in time – see above) can validly be used in the eventual judicial appeal.
CPC decision
By law, the CPC resolves on the appeal within one month after the opening of the case. The CPC decision, including the underlying reasoning, must be announced within 7 days after the CPC is ready with its decision. Normally, depending on the workload of the CPC, decisions on such appeals are issued within one and a half – two months following submission of a complete statement of appeal and supporting documentation.
After the open hearing, the CPC, in a closed session, must decide on the merits of the case by a formal decision by which:
- rejects the appeal (in part or in its entirety);
- annuls the appealed decision of the contracting authority and returns the case to the contracting authority to continue the public procurement procedure from the latest lawful decision or action; or
- declares the nullity of the decision of the contracting authority.
In the event of it. (ii) above, the CPC may give the contracting authority compulsory instructions relating to the application of the law and the irregularities identified in the public procurement procedure.
In case the contracting authority enters into a contract during the course of a pending CPC procedure, the customer must immediately notify the CPC and provide a copy of the signed contract. If the CPC ultimately finds that the appealed decision is unlawful (in cases when before that the CPC has permitted the preliminary execution of such decision on request of the contracting authority), the competition authority shall impose a fine in the amount of 10 per cent of the value of the concluded contract, if it establishes that there was a violation of the law that has limited the ability of the complainant to participate in the appealed procedure and to be selected as the contractor. If there is no violation of the law that has limited the ability of the complainant to participate in the appealed procedure and to be selected as the contractor, then the amount of the fine will be 3 per cent of the contract value.
The CPC decision becomes effective (absent appeal) 14 days after it has been notified to the parties concerned.
Judicial appeal
The decisions of the CPC are subject to appeal before the Supreme Administrative Court (3-member panel). The parties may file an appeal within 14 days following the day they have been notified of the decision. Generally a judicial appeal suspends the entry into force of the appealed decision, unless the CPC has granted preliminary execution of the appealed decision and such preliminary execution has not been suspended by a court injunction.
The SAC shall resolve the case within one month after its receipt. In practice, the term may be longer depending on the workload of the court at a given period of time.
The judgments of the SAC on public procurement appeals are final and unappealable.
New evidence is not permitted in the court proceedings. The court will summon by a written notice the parties to be present or represented and plead in an open hearing.
The SAC may, among others, uphold the appealed CPC decision, or annul the CPC decision and annul the decision of the contracting authority, if it is unlawful, and return the case to the latter with compulsory instructions as to the interpretation of the applicable law and the legality of the tender procedure. The contract authority in such case must continue the public procurement procedure from the latest lawful decision or action.