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Excluded Tenderer’s Access to a Review in a Public Procurement Procedure

DOI https://doi.org/10.21552/epppl/2018/4/8

Carri Ginter, Triin Väljaots


The article explores the preconditions for excluded tenderers’ locus standi. It is commonly accepted that a chance at a new procurement can serve as grounds for granting the right to challenge the buyer’s decisions. This article focuses on the specifics of a situation where the buyer has made a decision to exclude the review-seeking tenderer and aims to clarify the point at which their rights to request for review of the decisions of the contracting authority should terminate. Pro tempore this point seems to be the time when the decision to exclude the tenderer becomes final. A specific set of facts from the procurement of trams for the City of Tallinn is used to demonstrate that at times this may lead to a race between judges. This makes the right to seek a review a matter of chance and not of law. Giving precedence to the time of filing a request for review is more in harmony with the Remedies Directives. In certain jurisdictions the principles of equivalence and effectiveness could be used to achieve this. If, in most cases, the national courts check the right to file a claim at the time of filing of the claim and not later, such treatment could be extended to requests for review filed by excluded tenderers.
Keywords: Locus standi; Judicial remedies; Excluded tenderers: Remedies Directives.

Dr Carri Ginter PhD is an Associate Professor of European Law at the School of Law of the University of Tartu (<https://oigus.ut.ee/>) and the Partner in Charge of Dispute Resolution at Sorainen (<http://www.sorainen.com>). For correspondence: <mailto:carri@ginter.ee>. Triin Väljaots M.A. is an attorney specialising in procurement and dispute resolution. She has been involved in high-profile procurement disputes, including the case underlying this article. She is also one of the professionals currently contributing to the Commentary on the Public Procurement Act.

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