The Ministry of Economic Development and Technology has prepared a draft law proposing a number of changes to commercial and administrative law. One of the acts to be amended is the Public Procurement Law. We review the key points of the government’s bill.
Current rules of procedure for appeals
There is no evidence preclusion in the current regulations. This means that each party to the appeal proceedings before the National Appeals Chamber may present evidence in support of its arguments or in rebuttal to the arguments of the opposing party until the hearing is closed. The appeal is heard in public, with the participation of the parties – at the seat of the National Appeals Chamber.
Legislator prioritises speeding up appeal proceedings
The amendment to the Public Procurement Law will change these rules.
Firstly, the parties will have to present all the evidence, otherwise they will lose the right to use it during the appeal proceedings. And this in the first pleading. The presentation of evidence at a later stage will only be possible in exceptional cases – e.g. if the need arises in the course of the appeal proceedings.
Secondly, the amendment will introduce the possibility of holding a remote hearing – provided that the nature of the activities to be carried out at the hearing allows for the hearing to be held at a distance and that this does not disrupt the proper course of the proceedings or infringe the procedural rights of the parties and participants in the proceedings.
The other proposed changes are:
- Reduction of the time limit for joining the appeal proceedings to two days from receipt of the notice of appeal
- The obligation for the contracting authority to file a response brief on pain of losing the right to use evidence (currently, the contracting authority has the right to file a response brief, but is not obliged to do so)
- The obligation to attach to pleadings submitted in the course of the proceedings proof of service of those pleadings on the other parties and participants in the proceedings
Our assessment of the changes
The impact of the proposed amendment, if it comes into force, remains to be seen. Certainly, some of the changes may simplify the appeals procedure (e.g. remote hearings), but some of them, such as evidence preclusion, raise some doubts.
Appeal proceedings are by definition to be conducted expeditiously (within 15 days of service of the appeal on the President of the Chamber), so additional restrictions on the presentation of evidence may deprive the parties of their right to defend their case.
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