Decisions on contracting versus review procedures for the award of public contracts

Abstract

This study compiles the doctrine of the Catalan Public Sector Contracts Court (TCCSP), fundamentally since the Law 9/2017, of 8 November, on public sector contracts (LCSP) came into force, which is particularly illustrative of the analysis carried out on the subject of the special appeal of the contested action and its place among the acts that the LCSP establishes as the object of the special appeal in matters of contracting. An analysis, as will be seen below, that is not limited to the list of specific acts determined by Article 44.2 LCSP, but which, drawing on the postulates established by Directive 89/665/EEC, the appeal procedures, the European case law dictated in this area and the principles of pro actione and the effectiveness of the appeal, goes further and includes any decision with a direct effect on the contracting procedure that is likely to have infringed European public contracts law or the internal transposition law To illustrate this, the study is systematically structured according to the order of the contract cycle, setting out the actions that can be hallenged from the initial phase of the tender, through the procedural actions leading to the termination of the procurement procedure, the end of the procedure with the award of the contract or actions comparable to it and, finally, the actions that can be challenged in the phases of execution and termination of the contract. Likewise, the content of this study is not only limited to explaining the actions that are subject to challenge through the special appeal, but also dynamically contains, through the corresponding link, all the doctrine and jurisprudence that is brought up and the statistical data of the TCCSP that allow us to see the weight that this object of study has represented in the doctrinal baggage of the Catalan Court. With the aim, therefore, not only of drawing the conclusion that the cases of inadmissibility of the special appeal due to the contested act are basically redirected to cases in which the review of the contested action corresponds to other bodies and instances other than the competent administrative body in the sphere of the special appeal, but also to constitute a tool that allows contracting bodies and all legal operators to understand the conflictive contractual praxis and the possible solutions for improvement, and that this leads to the necessary agility and efficiency in the processing of tenders and of the special appeal itself for the benefit of all public and private interests at stake.