Document Type : Original Article

Highlights

      In the provision of public services, the fear of misappropriation of public resources and the legal powers granted to them has always been the subject of debate among experts. Therefore, legislators establish institutions and authorities to ensure the proper implementation of laws and prevent possible abuses.

      One of the most widely used laws of any country in the public sector is the laws and regulations related to its field of trade. Realizing the importance of this issue, the United Nations Commission on International Trade Law (UNCITRAL) has prepared uniform rules on how to conduct tenders under the "UNCITRAL Model Law on Procurement (2011)" which sets out the rules and regulations for handling complaints. It is one of the most important parts of holding tenders. The present article intends to examine the views of the UNCITRAL Model Law in this field and compare it with the system set out in Iranian law, to provide solutions to achieve the common goals of the legal system of tenders and legislative institutions to use it in the form of a review of existing laws.

      The need to pay attention to the effects of the decisions of the designated authorities and the enforceability of their decisions and the broad financial and legal implications of the decisions issued, the need to comply with the principles of fair and impartial proceedings, while maintaining the independence of these institutions. Therefore, this article examines the process defined in the UNCITRAL Model Law in response to the question of what are the criteria governing the grievance process in the said law, and continues to identify the defects in the laws and regulations related to the bidders' complaints in the Iranian legal system, and then, practical solutions have been proposed to eliminate the identified damages, with an emphasis on protecting the rights and interests of the injured persons and with the aim of improving the effectiveness of the current Iranian laws. In order to achieve the objectives of the article, a series of library studies have been studied in order to identify, analyze the problems, shortcomings in the field of laws and processes for handling bidders' objections to the bidding.

      The article begins with a general statement about the importance of addressing the rights of persons affected by the actions and decisions of public sector institutions as an undeniable right of individuals and citizens. The bidders' right to appeal is applicable in the UNCITRAL Model Law if it is specified in "time sections" and in Iranian laws if it occurs in the specified "time limits". This means that for each stage of announcing and following up the complaints, deadlines have been set, outside of which, the submitted complaints are considered invalid. According to the provisions of the UNCITRAL Model Law, complaints are usually filed in two time sections, after which it is not possible to file a complaint on issues related to the previous tender phase. It seems that the view of the model law in this regard is more efficient and effective in implementation.

      In both laws subject to the article, in order to create the legal effects of filing a complaint and enjoying legal benefits, bidders must file an objection within a specified time sections (in the UNCITRAL Model Law) and within the time limits set (in Iranian law). Otherwise, their announcement will have no legal validity. After the announcement of the bidders' objection, one of the different forms of decisions and issuance of votes by the bidder and the quasi-judicial body is conceivable, which may lead to stopping the process, renewing the process or canceling it, and in case of concluding a contract, disrupting the including contract process.

As the most important part of the article, comparatively examines the structure of the staff and the process of handling complaints in the institutions specified in the laws and the powers granted to them. Accordingly, the bidding object to the process and the result of the bidding must first declare its objection to the "bidder" and ask for reasons. In case of non-satisfaction of the bidder's answer or non-response within the deadline stipulated in the law, the objecting bidder will have the right to refer to the "quasi-judicial body". After going through the relevant steps of announcing and registering a complaint in the said quasi-judicial institution and issuing a verdict by the quasi-judicial institution, if he insists on his objection, he can submit his complaint against the issued verdict to the judicial authorities. Therefore, in comparison with the institutions designated to handle complaints in Iranian law and the UNCITRAL Law, Iranian law has acted in the same way as the law in determining the titles of review authorities, regardless of the powers provided for each of them.

The grievance process in Iranian law necessarily begins with announcing it to the bidder. According to the model law, it is better to refer to the bidder for explanations as an "optional" in the grievance process. But according to Iranian law, announcing the bidder's objection before referring to a quasi-judicial body is “mandatory” and is not considered an “optional”. The results of comparing the laws subject to the article in this section confirm that in case of announcing a complaint to the bidder, the Iranian law does not give any authority to reform its inappropriate actions.

      Also, proceedings by the quasi-judicial body are provided for in both laws. The structure and competencies of the mentioned institution is discussed. From the point of view of the model law, what should be considered in this regard is the competence of the officials who hold the tender should be compatible on the basis of internal laws and regulations.

This article also discusses the importance of documenting the process of investigation and information with the aim of paying attention to the principle of public oversight of the actions of public institutions.

      Finally, examining how to observe the principle of the presence of the litigants in the proceedings as one of the principles of a fair trial in the laws that are the subject of this article is discussed. The lack of clear and specific rules of procedure, such as the right of the person or his representative to attend the hearings, the right of defense and the right of access to documents and etc., leads to hold an unfair grievance process in the Iranian quasi-judicial body.

      In the law and regulations, the legislator has limited himself to a general statement of the process and competencies. At the end of the article, as a general conclusion, it is emphasized that the authorities handling complaints about tenders follow the principles of fair trial. The results of the review of the tender complaints process in Iranian law indicate that there are serious obstacles in achieving this goal, which seem to be overcome by adopting the approach of the UNCITRAL model law in this regard and using the relevant solutions. Despite some commonalities. The structure, process and jurisdiction of Iranian law are inconsistent with the provisions of the Model Law and in some cases violate the principles of fair trial.

• Adaptive Administrative Law