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Complaint Action Procedure in a Public Bidding
11/05/2021The Procedure for a Claim Action in a Public Tender
We have all read in the media about the claims filed by companies in public acts, but do we really know the meaning of a claim and the reasons why a proponent can file such a claim?
When a proponent, that is, natural persons, legal persons or consortiums formed by such persons, participates in a contractor selection process, such as a Public Tender, and maintains grounds for disagreement with the process carried out by the Bidding Entity, the proponent has the right to file a claim against the process based on Law 22 of June 27, 2006, ordered by Law 153 of 2020 that regulates Public Procurement (the “Law”).
The Law indicates that a claim action may be filed against any legal or arbitrary act or omission that occurs during the bidder selection process before it is awarded, declared void or cancelled, through a type of appeal that must be submitted to the General Directorate of Public Procurement (DGCP) following the formalities and terms established in the Law. It is important to consider that when the DGCP admits a claim action, the public act is suspended, that is, the terms are suspended, excuse the redundancy, until the appeal is resolved.
According to the new amendment to the Public Procurement Law, two types of claim actions are distinguished, against: (i) the specification , which is the document that establishes the requirements demanded by the bidding entity, including the terms and conditions, rights and obligations of the contractor and the procedure to be followed in the Public Tender; or (ii) the evaluation committee report , which is the document issued by the Evaluation Committee with the analysis and the results derived from the review of the proposals in the corresponding selection process.
We proceed to analyze both types of claim actions:
A. Claim against the Statement of Charges:
The particularity of the appeal actions against the specifications is that only the bidders who have participated and signed the minutes of the prior meeting and approval can file such an appeal. In practice, approval meetings are usually held weeks after the publication of the public act on the Panama Compra portal, and their purpose is to give interested parties the right to consult with the Bidding Entity all their questions relevant to the Public Tender and the specifications.
An action against the tender document may be directed against an illegality or a section of the tender document that contains a requirement that violates the Law. For example, in a hypothetical case where the tender document details that the company’s financial statements may be presented in a currency other than the US dollar, knowing that all financial statements must be presented in accordance with the legal currency. In this case, the bidder has the right to file a claim action before the DGCP in order to order the bidding entity to correct said section of the tender document.
The terms stipulated by law for filing a claim vary according to the type of contractor selection process. For example, in the case of minor contracts, the bidders have one (1) business day before the submission of proposals to file the appeal. On the other hand, in tenders for best value and public tenders, the following terms apply:
- No less than three (3) days before the day of the contractor selection ceremony, if the amount exceeds fifty thousand dollars (US$50,000.00) and does not exceed five hundred thousand dollars (US$500,000.00).
- No less than four (4) days before the day of the contractor selection ceremony, if the amount exceeds five hundred thousand dollars (US$500,000.00).
Once the claim action has been filed with the DGCP, it has a period of two (2) business days to admit or reject it. In the event that the DGCP admits the action, it must publish its decision on the “PanamaCompra” Portal and begin a term of no more than five (5) days with the right to an extension of three (3) additional days to resolve it. If the DGCP does not comply with the admission or rejection within the term of two (2) days contemplated by Law, it is understood that the claim action has been admitted and it must resolve it according to the terms mentioned above. Likewise, if the DGCP does not admit the appeal, it must publish a resolution motivating its decision not to admit it.
B. Claim Action against the Evaluation Commission Report:
Before entering into this point, we reiterate that the report of the verification or evaluation commission is the document issued and signed by the verification or evaluation commission where they present the analysis and result that arises from the review of the proposals within the contractor selection process. The report must indicate whether or not the bidder complies with the minimum mandatory requirements, detailing the table of prices offered by each bidder and the qualification of the technical part. Because there are several types of public bidding, each report must conform to what is established by Law according to each type of contractor selection process. The report of the evaluation commission must be published on the “PanamáCompra” portal.
The new aspect introduced by Law 153 of 2020 for claims against the evaluation committee’s report is that, as a first step, the proponent must submit a report of observations to the bidding entity, stating the reasons for disagreement resulting from the committee’s report, before filing the claim action with the DGCP. The submission of the new observations report is a prerequisite, established by Law, to be entitled to file the claim action. Even among the requirements for filing a claim action, it was added to include proof of the submission of the observations report to the bidding entity.
In contractor selection acts such as public tenders and public tenders for best value, the bidders have three (3) business days, counted from the date on which the evaluation report is published electronically on the “PanamaCompra” portal, to present the observations report to the bidding entity. Immediately after its presentation, the bidding entity has two (2) business days to decide whether to order a new partial or total report to the same evaluation committee. If after the time has elapsed, the entity does not issue a decision, it is understood that the committee’s report has been accepted by it, and it may award or declare the contractor selection act void within a period of two (2) days.
In the event that the entity accepts the observations report, the entity must publish a reasoned report justifying and ordering a new partial or total analysis of the report subject to the public tender.
Under the Law, a claim may only be filed against the evaluation committee’s report provided that the contract subject to the selection process has not been awarded or declared void or cancelled. The DGCP has five (5) days with the right to an extension of three (3) additional days to resolve the appeal.
In the event that a new evaluation report ordered by the DGCP is issued, no claim action will be admitted, unless said report (the “New Report”) has been issued in contravention of those previously ordered by the DGCP, and only the controversial points will be analyzed in this new report.
Law 153 of 2020 establishes as a new requirement to file a claim action against the New Report, the presentation of a claim bond for 10% of the reference price of the public act. In the case of public acts of a framework agreement, the amount of the claim bond will be established in the statement of charges, which cannot be less than five hundred thousand dollars (US$500,000.00) by Law.
It should be noted that the proponent benefiting from the evaluation report that preceded the New Report is not required to present the bond described above at the time of filing the claim against the New Report.
The resolution that resolves a claim action does not admit any appeal through administrative means and takes effect from the business day following its publication on the “PanamáCompra” portal.