The Cyprus Tenders Review Authority and its pivotal role in safeguarding justice and transparency in Cyprus public procurement tenders.
Over 250.000 public authorities in the European Union spend around 14% of the collective GDP (around €2 trillion per year) on the purchase of services, works and supplies from private enterprises. In many sectors such as energy, transport, waste management, social protection and the provision of health or education services, public authorities are the principal buyers. The public sector can use procurement to boost jobs, growth and investment, and to create an economy that is more innovative, resource and energy efficient, and socially-inclusive. High quality public services depend on modern, well-managed and efficient procurement.
A great deal of time and effort goes into preparing a bid for a competitive tender. Nevertheless, a non-compliant bid or a bid which is unsuccessful despite the fact that other tenderers were not compliant with the tender terms, may lead to an unfair loss of a significant business opportunity. The Tenders Review Authority of Cyprus is the public procurement review body of the Republic of Cyprus. It was established in 2003 and started its operations on January 2004. It comprises its President and four other Members, all of whom are appointed by the Council of Ministers, on the suggestion of the Minister of Finance. The term of office of the President and the Members is five years with the possibility of reappointment for an equal period. Its operations are now governed by law104(I)/2010 (the Law). We are looking below into some key issues pertaining to the Cyprus Tenders Review Authority.
When can the Cyprus Tenders Review Authority intervene in a public tender
The Cyprus Tenders Review Authority has extensive powers in relation to public procurement matters. It can consider and decide challenges against decisions of contracting authorities preceding the conclusion of a public contract and it can issue interim measures pending the examination of the substance of a recourse in order to prevent damage to the affected interests, including suspension of the award procedure or the signing of the public contract or the execution of any decision of the contracting authority, as appropriate. Further, it can consider and decide that certain contracts were invalidly awarded and cancel them and impose sanctions or award costs in relation to proceedings before it.
Who has the right to challenge an award before the Cyprus Tenders Review Authority
Any interested party who has or had interest in being awarded a specific public contract and who has suffered or may suffer damage, by a decision of the contracting authority which precedes the conclusion of the public procurement contract and which is alleged to violate any provision of the applicable law, has the right to refer to the Cyprus Tenders Review Authority, requesting a declaration that the award should be cancelled.
What are the deadlines for a public procurement challenge before the TRA
The overall timeframe and deadlines are quite short. A challenge to an award shall be brought before the Cyprus Tenders Review Authority within fifteen calendar days from the day following the date on which the decision of the contracting authority was sent to the tenders (if the decision was sent by fax or other electronic means) whereas, if other means of communication were used, then within fifteen calendar days from the day following the date on which the decision of the contracting authority was sent or within ten calendar days from the day following the date of receipt of the decision of the contracting authority. In relation to decisions of the contracting authority containing an invitation of tender or any other decision relating to technical and financial specifications of the tender process, the challenge shall be brought within ten calendar days from the date of publication of the decision. Other deadlines apply in relation to the forms of challenges, such as a challenge requesting a declaration that a public contract which has already been executed shall be cancelled. There is no possibility of extending the deadlines and the Law does not provide discretionary power to the Cyprus Tenders Review Authority to extend any deadline for any reason.
Submission of recourse and procedure after submission of the recourse
The recourse can be submitted to the offices of the Cyprus Tenders Review Authority, simultaneously with the payment of a relevant fee. Within a period of two working days from the submission of the recourse, the Cyprus Tenders Review Authority notifies the contracting authority and requests both parties to appear before the Cyprus Tenders Review Authority within two working days from the date of notification of the recourse to the contracting authority, in order to be heard on the possibility of ordering an interim measure to suspend the signing of a contract or the award or execution procedure of a decision made by the contracting authority. In examining the possibility of taking interim measures, the Cyprus Tenders Review Authority shall take into account the possible consequences of the interim measures for all interests that may be harmed, as well as the public interest, and may decide not to grant such measures if it takes the view that there shall be negative effects that override the benefits of suspension. After the issue of interim measures is dealt with, the contracting authority is asked to file its reply to the recourse and the Cyprus Tenders Review Authority schedules a date soon for the examination of the recourse and invites both the applicant and the contracting authority to appear before the Cyprus Tenders Review Authority to argue their case.
Judicial consideration of decisions by the Cyprus Tenders Review Authority
Every decision of the Cyprus Tenders Review Authority is subject to a judicial examination which can be requested by a recourse filed with the Administrative Court within 75 days from the date of issuance of the decision of the Cyprus Tenders Review Authority.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.