Hankintaoikaisu ja muutoksenhaku hankinta-asioissa/EN
A tenderer who considers that a contracting authority has acted incorrectly has available both a fast remedy addressed to the contracting authority itself and a genuine right of appeal to the Market Court.
- Mistä on kyse: Self-correction (hankintaoikaisu) is the contracting authority's own remedy, while an appeal to the Market Court is the genuine legal remedy, subject to strict time limits and the possibility of seeking a declaration that the contract is ineffective.
- Miksi sillä on kaupallista merkitystä: Observing the appeal deadline is an absolute condition for obtaining legal protection — an appeal filed late is dismissed without examination, regardless of the substantive merits of the claim.
- Mikä menee useimmin pieleen: If the procurement contract has already been signed after the proper standstill period has elapsed, the most effective remedy available may shrink to a mere compensation payment — remedies in kind (e.g. setting aside the award decision) are no longer available.
Standstill period before conclusion of the procurement contract
[muokkaa]In a procurement exceeding the EU threshold, and in a service procurement under Annex E or a concession contract exceeding the national threshold, the procurement contract may be concluded no earlier than 14 days after the candidate or tenderer has received, or is deemed to have received, notice of the award decision together with instructions on how to appeal (the standstill period). For procurements based on a dynamic purchasing system or a framework agreement, the standstill period is 10 days, and no standstill period applies to a direct award.[1] The purpose of the standstill period is to give the parties concerned a genuine opportunity to bring the procurement matter before the Market Court before the procurement contract becomes binding.[2]
Self-correction (hankintaoikaisu)
[muokkaa]A contracting authority may itself set aside an incorrect decision, or withdraw another ruling with legal effect made in the course of the procurement procedure, and decide the matter afresh (self-correction), either on its own initiative or at the request of a party concerned.[3] A party concerned must submit a request for self-correction within 14 days of becoming aware of the contracting authority's decision or other ruling; the contracting authority may, for its part, take up its own decision for correction on its own initiative within 90 days of the decision being made.[4] Self-correction is a fast and free means of correcting clear errors without proceedings before the Market Court, but it does not prevent a parallel appeal to the Market Court — nor does an appeal to the Market Court prevent a request for self-correction from being made or examined.[4]
Appeal to the Market Court
[muokkaa]The genuine right of appeal is exercised by lodging a written appeal with the Market Court within 14 days of the candidate or tenderer becoming aware of the award decision together with instructions on how to appeal.[5] The time limit extends to 30 days if the contracting authority has concluded the procurement contract without observing the mandatory standstill period, and to six months if the award decision or the accompanying instructions on how to appeal were materially deficient; direct awards are additionally subject to their own time limits depending on the notice procedure used.[5] In a procurement exceeding the EU threshold, the contracting authority may not conclude the procurement contract for as long as the matter is pending before the Market Court as a result of an appeal.[6] The Market Court may impose several different sanctions for infringement of the Procurement Act:
- Compensation payment — paid to the appellant where remedies in kind are no longer available (the contract has already been concluded); without special reason, the amount may not exceed 10% of the value of the procurement contract.[7]
- Ineffectiveness — a procurement contract may be declared ineffective in three situations: an unjustified direct award, conclusion of the contract during the mandatory standstill period, or conclusion of the contract despite the suspensive effect of an appeal.[8]
- Penalty payment — a payment ordered to the State, which may be imposed together with a declaration of ineffectiveness or for other serious procedural errors; the maximum amount is 10% of the value of the procurement contract.[9]
- Shortening of the contract term — the Market Court may order the contract to end prematurely for compelling reasons relating to the public interest, where a declaration of ineffectiveness has not been ordered on that ground.[9][10]
Because an appeal has an automatic suspensive effect on the signing of the procurement contract (the so-called suspension effect), reacting quickly to an award decision — preferably before the standstill period ends rather than after — preserves a considerably wider range of remedies than an appeal made later against a contract that has already been signed.
Key time limits
[muokkaa]| Action | Time limit | Starting point | Section |
|---|---|---|---|
| Request for self-correction (party concerned) | 14 days | from becoming aware | section 133 |
| Self-correction on own initiative (contracting authority) | 90 days | from the decision being made | section 133 |
| Standstill period before conclusion of the procurement contract | 14 days (10 days for framework agreements/dynamic purchasing systems) | from becoming aware | section 129 |
| Appeal to the Market Court, general rule | 14 days | from becoming aware | section 147 |
| Appeal, where standstill period not observed | 30 days | from becoming aware | section 147 |
| Appeal, where decision or appeal instructions materially deficient | 6 months | from the decision being made | section 147 |
See also
[muokkaa]Sources
[muokkaa]- ↑ Act on Public Procurement and Concession Contracts 1397/2016, section 129 (Finnish text), Finlex.
- ↑ Directive 2007/66/EC of the European Parliament and of the Council amending Council Directives 89/665/EEC and 92/13/EEC with regard to improving the effectiveness of review procedures concerning the award of public contracts, Article 1(2) (inserting Article 2a "Standstill period" into Directive 89/665/EEC), EUR-Lex.
- ↑ Act on Public Procurement and Concession Contracts 1397/2016, section 132 (Finnish text), Finlex.
- ↑ 4,0 4,1 Act on Public Procurement and Concession Contracts 1397/2016, section 133 (Finnish text), Finlex.
- ↑ 5,0 5,1 Act on Public Procurement and Concession Contracts 1397/2016, section 147 (Finnish text), Finlex.
- ↑ Act on Public Procurement and Concession Contracts 1397/2016, section 150 (Finnish text), Finlex.
- ↑ Act on Public Procurement and Concession Contracts 1397/2016, section 155 (Finnish text), Finlex.
- ↑ Act on Public Procurement and Concession Contracts 1397/2016, section 156 (Finnish text), Finlex.
- ↑ 9,0 9,1 Act on Public Procurement and Concession Contracts 1397/2016, section 158 (Finnish text), Finlex.
- ↑ Markkinaoikeuden määräämät seuraamukset (Finnish text), Hankinnat.fi.