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Amount of payment for complaint to the Procurement Monitoring Office is set
2009, EnglishLinda Berzina, Mag.iur.
The latest amendments to the Latvian Public Procurement Law („PPL”), which became effective as of 1 September 2009, provide that further on a tenderer must pay a deposit payment for filing a complaint with the Procurement Monitoring Office („IUB”).
The Cabinet of Ministers has adopted regulations establishing the amount of the deposit payment. The said regulations also provide for rules on the payment and repayment of the deposit and prescribe instances when the applicants are relieved from the deposit payment. The regulations came into force on 16 September 2009.
The deposit payment is set forth as a fixed sum depending on the contract value and the applicable procurement procedure. The amount of the deposit payment for public construction contracts varies from LVL 500 to LVL 10 000 and for public supply and services contracts – from LVL 200 to LVL 1000.
By introducing the deposit payment, the aim of the legislator was to reduce the amount of unfounded applications submitted to the IUB. But the high amounts of the deposit payment substantially limit the tenderers’ possibilities to complain to the IUB regarding illegal purchaser’s requirements and conduct. Therefore the question arises, whether the said aim cannot be attained by less restrictive means. In our opinion less restrictive is the right of IUB to reject prima facie unfounded applications. This novelty is also introduced by the latest amendments to the PPL.
In any event, it should be noted that the President of Latvia has filed a claim with the Constitutional Court about the amendments regarding deposit payments for complaints. The Constitutional Court has opened a case on 26 August 2009.
It should also be mentioned that the amended PPL provides that if the IUB finds an application founded or partly founded, the deposit payment is repaid to the applicant. However, in our opinion, this provision does not eliminate the restriction on tenderers’ rights at the moment of the filing of the complaint.
