Can I challenge the results of a public procurement?

Can I challenge the results of a public procurement?

Challenging the results of a public procurement in Ecuador is a right that allows participants to challenge decisions that they consider unfair or contrary to current regulations. Below are the key steps and considerations to carry out this process effectively.

1. Identify the grounds for challenge

Not all nonconformities are subject to challenge. It is critical to determine whether there are solid legal grounds for filing an appeal. The main causes include:

• Errors in bid evaluation: Deviations or inconsistencies in the application of the evaluation criteria established in the specifications.
• Inconsistencies in the award: When the award is not aligned with the results of the evaluation or deviates from the provisions of the Organic Law of the National Public Procurement System (LOSNCP).
• Lack of transparency or favoritism: Indications of partiality, conflicts of interest or violations of the principles of equality and transparency that govern public procurement.

2. File an administrative complaint with the contracting entity

The first formal step is to file an administrative claim directly with the entity that carried out the contracting process. To do this:

• Term: You have up to three working days from the notification or publication of the act that is challenged to file the claim.
• Content of the claim: It should include identification of the process and the contracting entity, a detailed description of the reasons for the challenge, and evidence to support its position.
• Form of presentation: Although it is traditionally carried out physically, some entities may offer electronic mechanisms for its presentation. It is advisable to check the specific procedure of the contracting entity.

3. File an appeal with the contracting entity

If the administrative complaint is not favorably addressed or does not receive a response within the established period, you can file an appeal:

• Term: You have three business days from the notification of the response to the complaint or from the expiration of the deadline to respond.
• Resolution: The contracting entity must resolve the appeal within a maximum period of seven working days. If it does not do so, the National Public Procurement Service (SERCOP) can intervene and suspend the procedure until a resolution is issued.

4. Go to the National Public Procurement Service (SERCOP)

If the contracting entity’s responses are not satisfactory or there is evidence of inaction, it can refer the case to SERCOP:

• Procedure: File a formal complaint through the Official Public Procurement System of Ecuador (SOCE). To do this, you must log in with your username and password, select the “Claim” option and complete the online form attaching the supporting documentation.
• SERCOP’s action: This entity will evaluate the case and may issue recommendations of mandatory compliance for the contracting entity or, in serious cases, suspend the contracting procedure.

5. File a contentious-administrative lawsuit

If administrative channels do not offer an adequate solution, you have the option of going to court:

• Origin: This remedy is pertinent when administrative remedies have been exhausted and disagreements with the decisions adopted persist.
• Presentation: It is filed with the Court of Administrative Litigation, and it is highly recommended to have specialized legal advice for this process.

Conclusion

Challenging the results of a public procurement in Ecuador is a process that requires detailed knowledge of the established regulations and procedures. It is essential to act within the deadlines and forms that the law provides, and to support each action with the relevant documentation. Having specialized legal advice can be decisive in guaranteeing the effective defense of their rights and ensuring transparency and legality in public procurement processes.