Boundaries of controlling the legality of decision made by the procurement institution in the appellate stage of public procurement procedure

Predmet rada je analiza granica unutar kojih se ima ispitivati odluka naručitelja u žalbenom stadiju javnonabavnog postupka. Autor analizira dijametralno suprotstavljena stajališta Državne komisije za kontrolu postupaka javne nabave, s jedne, odnosno Upravnog suda RH, s druge strane. Stajališta tih tijela promatraju se kroz perspektivu relevantnih odredbi Zakona o općem upravnom postupku kao i dominantnih stajališta doktrine upravnog prava. Naposljetku, predlažu se promjene de lege lata i de lege ferenda uz odgovarajući prikaz usporednog prava.Legal area of public procurement does not tolerate unsolved procedural issues. Economic value and the importance of these procedures for the whole society call for their prompt and lawful solving. One of the issues crystallised through the functioning of the State Commission for the Control of Public Procurement Procedures (State Commission) is the question whether there exist, and if so, where are the boundaries of controlling the decision of a procurement institution in the appellate stage of public procurement procedure? There is also the question which legal sources contain the norms that regulate these issues. State Commission for the Control of Public Procurement Procedures and the Administrative Court of the Republic of Croatia have quite opposite viewpoints. State Commission believes that de facto there are no such boundaries (unfortunately, the Commission insists on such a viewpoint in spite of the judgements of the Administrative Court), whereas the Administrative Court bases its opposite opinion on the provisions of the Law on General Administrative Procedure and on the dominant opinions of administrative law doctrine. According to the Administrative Court, the Law on General Administrative Procedure is the very legal source that contains the norms whose implementation would solve the above mentioned legal issue. The solution is in the fact that a procurement institution’s decision in the appellate stage of public procurement procedure must be controlled within the boundaries of the appeal filed by the appellant. Similar opinion is supported by the mainstream of administrative law doctrine. This opinion is based on the appropriate interpretation and implementation of the provisions of the Law on General Administrative Procedure (as the subsidiary legal source), since in the Law on Public Procurement there are no legal norms that deal with the mentioned legal issue. Notwithstanding the current normative situation in the Law on Public Procurement, which is the primarily relevant regulation, it is possible to reconcile the opposed viewpoints. In order to achieve that, it is necessary to apply the LGAP provisions on appellate stage appropriately. The institute of declaring the decisions null is an instrument that enables the State Commission to intervene over the boundaries of appeal in cases of the most striking violations of the Law on Public Procurement. However, the author believes this to be only temporary solution until new legal regulation is made, since the final resolve must be provided for in definite, unequivocal legal norms. Comparative law confirms the existence of legal norms directly dealing with the boundaries of controlling the legality of a procurement institution’s decision in appellate procedure. The patterns of legal regulation are repeated: the norms that combine the dispositif principle (as a rule) and the official principle (as an exception). There are differences regarding the space given to the decision of the responsible body during ex offo proceedings in the appellate stage of public procurement procedure. The normative choice of the Croatian legislator should be structured accordingly