Challenge a decision: appeals and time limits

You have the right to challenge a public buyer's decision, but that right disappears quickly. Before you act, ask two questions: was a rule really broken, and are you still in time? This guide is not legal advice. On a real case, get help.

When to challenge, and when not to

A challenge makes sense when you can show a specific breach. For example:

• a criterion was applied that was not in the tender file;
• the winning bid does not meet a written eliminatory criterion;
• there is a calculation or ranking error you can demonstrate;
• your bid was rejected on grounds the file does not provide for;
• specifications are written for one brand or one firm without reason, or the time allowed is plainly impossible: here it is the notice or the file you are challenging, before the deadline.

A challenge makes little sense when you are simply disappointed: your price was higher, or your bid seemed better to you. A committee that followed the grid can lawfully prefer another bid. Likewise, if your own bid had an eliminatory defect, winning the appeal probably will not give you the contract. Also look at what you can really obtain: a fresh evaluation, an annulment, or nothing concrete if the contract is already signed and under way.

Start by asking in writing for the reasons you were rejected, as explained in Evaluation and award. A clear answer may be enough to close the matter, or may give you grounds for an appeal. Careful: if the clock for appeals is already running, this request does not necessarily stop it.

The levels of appeal in the national system

Under national law, a challenge usually follows this order. Some countries do not require every step, or give them other names.

1. 1

   The buyer

   You write asking it to review its decision. This is the administrative appeal (recours gracieux). It is often required before going further. It may be enough if the error is obvious.

2. 2

   The regulator's appeals committee

   This is usually the body responsible for settling public procurement disputes, separate from the buyer. Depending on its powers, it can suspend the procedure, cancel a decision or order it to be redone.

3. 3

   The courts

   The judge comes last, often in administrative matters. It is slower and more costly, and you will need a lawyer.

🇧🇫The rule in Burkina Faso

• An appeal must be filed within 3 working days from publication of the tender notice or of the CAM results, receipt of the invitation letter, or notification of the contested decision. This period applies to an appeal to the buyer (optional) and to a direct appeal to the ARCOP's dispute settlement body (ORD). Appeal time limits are « délais francs », meaning the starting day and the last day are not counted (art. 38 and 216 of the decree; art. 41 to 44 of the law).[2][1]
• If you go to the buyer first, it must answer within 3 working days. If its answer disappoints you or it stays silent, you have 2 working days to bring the case to the ORD. The ORD notifies its decision within 5 working days of being seized. If it overruns this time, the tender file or the contested results are deemed confirmed (art. 38).[2]unofficial source
• Against an ORD decision in a tender dispute or a disciplinary matter, an appeal lies to the competent administrative tribunal within 10 days of the ruling (or of notification if it was made in default). The tribunal rules at first and last instance in 30 days, then an appeal on points of law to the Conseil d'État must be filed within 10 days and is decided in 30 days. The appeal is not suspensive, and ORD decisions in the award phase cannot be challenged by suspension-type interim relief (art. 48 to 50 of the law).[1]
• During performance of the contract, disputes also go to the ORD, which records full conciliation, partial conciliation or failure in minutes. After failure or partial conciliation, the administrative tribunal must be seized within 10 days of notification of the minutes, or the claim is inadmissible. OHADA arbitration is available between the parties (art. 45, 51 and 56 of the law).[1]

Time limits are short and absolute

The appeal period is the time during which you can act. After that period your appeal is generally rejected without even being examined, however strong it is. These limits are short because a buyer cannot leave a contract hanging.

Three traps come up again and again:

• The starting point. It can be publication, notification or the decision itself. Find out which applies, and write down the date you learned of the decision. The panel above gives what has been established for your country.
• The count. Check whether it means working days or calendar days, and whether the time runs to receipt or to sending.
• Challenging the file. A challenge against the notice or the specifications must usually be made before the submission deadline. Waiting until you have lost is generally too late.

When in doubt about the calculation, act as soon as you can, without aiming for the last moment.

What a useful complaint contains

An effective complaint is short, factual and complete. It accuses nobody without proof, and it sticks to the rule.

• Who you are: company name, address, representative and a power of attorney if needed.
• The decision concerned: the notice reference, the lot, the authority, the date of the decision and the date you learned of it.
• The facts: what happened, in order, with dates.
• The rule broken: the clause in the file or the applicable text, and how the facts depart from it.
• What you ask for: a review, annulment of the award, suspension of the procedure.
• The evidence: your receipt, the opening minutes, your bid, the buyer's reply.
• Your signature and, if you deliver in person, a copy stamped as received that proves the date. Also check the place and method of filing, and any fee or deposit.

Does a challenge suspend the award?

Not always. Depending on the country, the level of appeal and the moment, the procedure may be suspended automatically, by decision of the body you went to, or not at all. Many systems provide a waiting period before signature so that these challenges can be made.

Timing matters a great deal. Once the contract is signed it often becomes harder to obtain anything other than compensation. So act before signature, and ask expressly for suspension in your complaint if the rules allow it.

Funders and the United Nations

If the contract is funded by a development funder, or run by an international organisation, the routes are different. The organisation's rules can replace or add to the national system, with their own time limits and their own address.

• Funder-financed projects. The file says which route to follow: usually the complaint goes first to the project unit, sometimes with the funder informed. See for example the World Bank, the African Development Bank or the European Union.
• United Nations agencies. Each has its own supplier complaint procedure, often stated in the solicitation documents. See the United Nations.
• Private companies and NGOs. There is generally no organised appeal beyond what their own policy or their funder provides. See Companies and NGOs.

If you suspect fraud or corruption, and not just an error, some funders and regulators have a reporting channel separate from a complaint.

Fear of retaliation

This is why many firms never challenge anything: they fear being sidelined by that buyer afterwards. The fear is understandable, and nobody can promise you it is groundless.

A few practical points. Start with the request for reasons and the appeal to the buyer, which are the least confrontational. Keep a strictly factual tone that talks about a decision and not about people. Weigh what is at stake: does this contract justify straining a relationship with a buyer who matters to you? And keep a copy of everything you send and receive, in case unusual treatment follows.

In public procurement, a well-founded complaint made according to the rules is a right set out in the texts. You do not have to apologise for it.

When to get a lawyer

On large contracts, bring in a lawyer or specialist adviser from the start, preferably before filing the appeal: the drafting and the time limits often decide the outcome. A lawyer becomes essential before the courts. On a small contract, at least have your letter read by someone who knows the subject, such as your trade body if it offers this service.