Precautionary measures and contractual remedies –

Precautionary justice has been one of many nice contributions of the final 30 years to unravel the issues of delays within the decision of appeals earlier than the contentious-administrative jurisdiction; that as a consequence of this delay, the aim of the challenges may very well be misplaced.

A mannequin of precautionary justice that, with variations, has been transferred to the contractual appeals that come up earlier than the Administrative Courts of contractual appeals.

The present regulation of precautionary measures in particular contracting assets is included in Article 49 of Law 9/2017, on Public Sector Contracts. A principle that gives the next:

1. Earlier than submitting the particular enchantment, the individuals entitled to take action could request earlier than the competent physique to resolve the enchantment the adoption of precautionary measures. Such measures shall be aimed toward correcting procedural infractions or stopping different damages from being brought about to the pursuits affected, and should embrace, amongst them, these aimed toward suspending or suspending the process for awarding the contract in query or the execution of any determination taken by the contracting authorities.

2. The competent physique to resolve the enchantment should take a reasoned determination on the precautionary measures inside 5 enterprise days following the presentation of the doc by which they’re requested.

For these functions, the physique that should resolve, on the identical day that the request for the precautionary measure is obtained, will notify the identical to the contracting physique, which could have a interval of two working days, to current the allegations it deems acceptable. referring to the adoption of the measures requested or these proposed by the decision-making physique itself. If after this era no allegations are made, the process will proceed.

If earlier than issuing a decision the enchantment had been filed, the competent physique to resolve it’s going to add to it the request for precautionary measures.

There can be no recourse in opposition to the resolutions issued on this process, with out prejudice to people who proceed in opposition to the resolutions issued in the primary process.

3. When damages of any nature could come up from the adoption of the precautionary measures, the decision could impose the structure of a surety or assure adequate to reply for them, with out these taking impact till stated surety or assure is constituted.

By regulation, the quantity and type of the assure to be constituted in addition to the necessities for its return can be decided, which in any case should adjust to the precept of proportionality and take note of the topic and the article affected.

4. Until in any other case agreed by the competent physique, the suspension of the process that could be agreed as a precautionary measure won’t have an effect on the time period granted for the presentation of provides or proposals by the events.

5. The precautionary measures which might be requested and agreed upon previous to the presentation of the particular enchantment within the matter of contracting will lapse as soon as the interval established for his or her submitting has elapsed with out the celebration having deducted it.

The regulation, as will be seen, a part of a request that should right procedural infractions or forestall harm to the pursuits affected. A regulation that doesn’t present for the automated suspension of the decision. The potential for ensures that search to compensate for the damages that will happen are additionally foreseen.

The fact, for its half, assumes that the granting of precautionary measures is finished routinely, that assure measures are usually not often adopted and that decision procedures are usually longer every single day in time. With this, the harm to the general public curiosity is rising.

If we take the info you present us Silvia Diaz Tailor, the bulk development of the Contract Courts is to extend the decision interval. The 2019 information from the Central Court docket provides us a mean decision interval of just about 60 days; presumably because of the restricted private means they’ve to hold out their job.

Such an extended interval by which the contract can’t be executed since a lot of the circumstances are suspended and that requires authorized bobbin lace to satisfy public wants in circumstances of repeated contracts, particularly for provides or providers. These information are all of the extra putting if we observe that the share of whole or partial estimation of the circumstances in the identical Court docket didn’t attain 20% in the identical yr 2019. Is it actually vital that virtually all of the resolutions whose enchantment has been admitted for processing be suspended when 80% of them are going to be rejected? Is it not possible to weigh the looks of the useful resource? Even when the appellant has been in fourth or fifth place, is it handy to droop the decision?

The adoption of precautionary measures is just not debatable when the enchantment has the looks of fine regulation. What the statistics of Prof. Diaz Sastre present is that the weighting of pursuits within the TARC is just not carried out correctly and that its granting is given a sure automaticity, though article 49.2 requires a choice that could be optimistic or unfavourable.

In the identical manner, it’s not common to determine the counterweight marked by the achievement of ensures. Right here the fact is that there’s all the time a detriment to the overall curiosity and it’s not thought of even supposing in lots of circumstances it’s clearly seen from the start that the useful resource has little likelihood of success.

The orientation of selling precautionary measures in virtually all circumstances is only one extra manifestation that administrative regulation weighs extra the actual curiosity than the overall curiosity. I already referred to this on one other event and I confer with that. A unfavourable impact for the overall curiosity that’s enhanced by the truth that the variety of challenges is rising: the TARC is reaching virtually 1,500 new circumstances.

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