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The Tenders Review Authority (TRA) was established in 2003 and it is now governed by the Review procedure Procedures in the Field of Public Procurement Law of 2010.  It consists of 5 members, a Chairperson and 4 members, who are appointed by the Council of Ministers for a five-year term. The fundamental role of the TRA is to review the legitimacy of the decisions of the contracting authorities, from the beginning of the process of the announcement of a tender until the signing of the agreement and/or its cancellation.

The TRA examines and makes decisions on review procedures against the terms of the Tenders and/or other interim and/or final judgements of the contracting authorities before the conclusion of a contract. In addition, it decides whether interim measures are to be taken until the adjudication of the review procedure, namely, either the suspension of the conclusion or the signing of a contract, or the execution of any decision of the contracting authority. Finally, the TRA decides on review procedures regarding the consideration of a contract as ineffective and has the capacity to impose sanctions.

A legitimate interest to refer to the TRA for a review procedure lies with the interested economic operator who considers that the terms of a tender violate legal provisions before the expiry of the deadline for the submission of tenders, the economic operator that has submitted an offer and considers that the decision of the contracting authority to exclude him or to grant the tender to a third party is invalid and/or unlawful, the economic operator considering invalid and/or unlawful the decision for the cancellation of the Tender, and any economic operator considering invalid or unlawful the signing of a contract by a contracting authority that did not comply with the requirements of a previous publication or which violated the suspension deadline or the interim judgement.

According to recent amendments of the legislation, review procedures before the TRA are only permitted for tenders with an estimated value equal to and/or exceeding the amount of €500.000. Usually, the hitherto contracting authority states in the content of the terms whether review procedures are permitted to be brought before the TRA, or in the event the legislation in question is not applicable, that it is permitted to appeal before the Administrative Court of Cyprus.

The legislation sets out especially brief deadlines for review procedures to be brought before the TRA, either 10 days if the request regards technical specifications, or 15 days for any other decision awarding the tender or dismissing the offer. The costs of the review procedure are determined in accordance with the amount of the selected tender, or in the event the tender has not been awarded, with costs amounting to €5.000.[1]

It is also provided that the consideration of a contract as ineffective may be requested, if it has been unlawfully concluded, namely without adherence to the suspension deadlines or the publication obligations, within 6 months from the date of the conclusion of the contract. In such an event, the legislation also provides sanctions for the contracting authority.

A major advantage of the review procedures before the TRA are the provisions of the relevant law for direct and legal suspension of performance until the decision by the TRA regarding the interim measures. The procedure to secure a decision on the interim measures takes place especially quickly; specifically, the case is set within 2 days and a decision is issued within 5 days. The TRA mainly approves such requests by default, unless the contracting authority demonstrates that there is a public interest reason justifying the non-granting of the interim measures and/or the possible harm that may be caused with the granting thereof. The common practice is primarily for the TRA to grant interim measures, while it also often gives instructions to the contracting authorities that during the scheduling of a tender, they take into account the possibility of a review procedure being brought before the TRA. For example, in 2020, the TRA approved the granting of interim measures in 32 cases and denied it in 10 cases. In 2019, the TRA denied the granting of interim measures for only 3 cases (out of the 57 review procedures brought), and in 2 other cases, the interim measures were lifted at a later time.

The TRA can issue a decision which (a) ratifies the decision of the contracting authority, (b) cancels a decision, if it considers it to breach any legal provision, or (c) amends the decision of the contracting authority. Notably, out of all the review procedures filed in 2020 and for which a decision has been issued to date, 10 have succeeded, while 13 have been dismissed.  

As regards costs, each party is responsible for their costs, save for exceptions where the TRA deems that the applicant must pay the costs for the review procedure which has been dismissed. To date, the TRA does not seem to have exercised its discretionary power in this respect.

Any interested party may challenge the decision of the TRA via a review procedure, on the basis of article 146 of the Constitution, before the Administrative Court, within 75 days.

In the event that a review procedure before the TRA succeeds, the applicant who has been harmed by the decision of the contracting authority may claim damages through the competent District Court, justifying the damage sustained. However, it seems that no decision has been issued to date regarding such a request.

In general, although the TRA follows a quasi-judicial procedure, it has managed to handle cases within much shorter periods of time as opposed to the corresponding proceedings of the Administrative Court, and as a result, decisions are issued, on average, within just a few months. 

For more information please contact Ms.Eleni Neoptolemou at This email address is being protected from spambots. You need JavaScript enabled to view it..

[1] See particulars of costs here.

 

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