Other civil actions related to public procurements
1. With the exception of cases covered by Article 173(1), Article 175(1) and 176(1) as well as paragraph 3 herein any claim in civil law grounded on an infringement of legislation applicable to public procurement or to the procurement procedure shall be admissible on condition that the infringement has been stated in a legally enforceable decision by the Public Procurement Arbitration Board, or in the course of the review of the decision of the Public Procurement Arbitration Board, by the court.
2. If tenderers only claim the reimbursement of their costs (damages) incurred in the preparation of a tender and in relation to their participation in a procurement procedure from the contracting authority, it is sufficient to prove for the enforcement of such a claim that
- the contracting entity has violated a legislative provision applicable to public procurement or the procurement procedure,
- they have had a real chance of winning the contract and
- the infringement has adversely affected their chance of winning the contract.
3. The provisions laid down in paragraph 1 shall not apply, if the enforcement of a claim in civil law – or a reference made to the invalidity of the contract - is grounded on the infringement of the provisions stipulated in Articles 133-135, 138-140 and Article 142(3) or any other provision set out in this Act or in the related decrees concerning the content elements of the contract. In case of subsidies granted by the European Union, the legally enforceable decision of the Public Procurement Arbitration Board on the infringement of the public procurement law, or in case of review of the decision thereof, a final and binding court ruling thereon shall not be condition for the enforcement of a pecuniary claim arising - on the basis of the funding relationship - out of the infringement of the public procurement law, except ife the entity granting subsidy for the public procurement or the entity exercising the control of public procurements stipulated by law has already carried out the control of the procurement procedure and has established the lawfullness of the procedure. (This amendment entered into force on 1 January 2017.)
4. Apart from the lawsuit under Article 173(1), an action for establishing the invalidity of contracts due to infringement of regulations applicable to public procurement or for the application of the legal consequences of invalidity may be brought by tenderers participating in the procurement procedure concerned, only if the tenderer proves that he has a direct legal interest in relation to the invalidity of the contract. The mere fact that the tenderer has submitted a valid tender in the procurement procedure shall not itself serve as the basis for the direct legal interest. In the absence of an obligation to conclude the contract under the PPA, the court shall not impose, merely based on the decision closing the procurement procedure, an obligation on the contracting authority to conclude the contract. (This paragraph entered into force on 1 January 2017.)