Dispute Resolution Relating to Tenders and Administrative Contracts
June 28, 2022
By: Mohammed Fouad, Managing Associate
Rana ElBashir, Legal Researcher
The complexity of the procedural, technical and substantive issues related to the procurement and performance of obligations by contractors contracting with the government requires different dispute resolution procedures depending on when a dispute arises and the nature of the contract.
Disputes arising between bidders and the government during the bidding stage but before a contract is concluded, and disputes arising after the execution of the contract, have two different dispute resolution procedures according to law. Specifically, Law No. 24 of 2015 Regulating Tenders and Bids (“Tender Law”) sets out the framework and requirements governing tenders and bids offered by ministries, government bodies, authorities and public institutions in Qatar. Comprehensive executive regulations were subsequently enacted by virtue of Council of Ministers Decision No. 16 of 2019 (“Executive Regulations”).
Disputes related to the tender process prior to executing the contract
The Tender Law established a committee that is responsible for resolving disputes between a bidder and the government during the bidding stage (“Disputes Settlement Committee”). Examples of such disputes include those involving the provision of temporary bid bonds, challenging decisions to disqualify a bidder from participating in a tender, or challenging the classification category of a contractor.
The Disputes Settlement Committee is a semi-judicial committee operating under the Ministry of Finance. It is chaired by a Chief Judge of the Court of First Instance, who is supported by two other professional members. Its members perform a judicial function and have the authority to issue binding decisions and to enforce those decisions.
To submit a claim before the Disputes Settlement Committee, a bidder must submit its claim within 30 days from the date of the occurrence of the disputed action by the government, or 30 days from the date on which the bidder became aware of the disputed action. The Disputes Settlement Committee then schedules hearings, as needed, to hear the parties’ claims and defenses, ultimately issuing a decision within a maximum period of two months from the filing date. The decision of the Disputes Settlement Committee is immediately enforceable.
Decisions of the Disputes Settlement Committee may be appealed before the Administrative Circuit of the Court of Appeal within 30 days of the date the bidder became aware of the decision. Bidders must carefully observe the limitation periods to avoid having their appeal time-barred.
Disputes arising after the execution of the contract
When a dispute arises after a contract between the contractor or services provider and the government is executed, the parties will usually resort to the civil and commercial courts of Qatar to decide the matter. Administrative disputes are handled in line with the procedures set out in Law No. 7 of 2007 on the Settlement of Administrative Disputes (“Administrative Disputes Law”), rather than the Tender Law.
The Administrative Disputes Law established a circuit within the Court of First Instance whose jurisdiction is, among other things, to hear disputes arising out of administrative contracts. The Law provides that claims arising out of administrative contracts must be filed before the Administrative Circuit within the Court of First Instance. Judgments of the Administrative Circuit of the Court of First Instance may be appealed before the Administrative Circuit of the Court of Appeal.
The law does not define the term “administrative contract”, but guidance may be taken from jurisprudence and the principles of the Qatar Court of Cassation. Based on these sources, a contract will be considered an administrative contract if it meets the following requirements: (i) one of the parties is a public entity (i.e. governmental body); (ii) its subject or object is to serve a public purpose or a public interest; and (iii) it includes clauses that are unusually onerous when compared to what is customary in Civil Law contracts.
As an alternative, companies party to construction and supply contracts with the government that are seeking compensation for extension of time claims, variation orders or any amendments to their scope of work may, at their option, file a claim before the Compensation and Claims Committee (“CCC”). The CCC was first established by the Council of Ministers in 1996. Its constitution and scope were amended a number of times since, most recently by the Council of Ministers Decision No. 34 of 2020.
The CCC operates under the Ministry of Finance and has members from various governmental organs. It is mandated to receive and review compensation claims submitted against ministries, other government entities, and public bodies and institutions with a particular focus on compensation claims for delays by those bodies in the performance of their obligations arising from contracting, supply and service contracts.
Claims made before the CCC must not have been previously adjudicated by a court and they must be submitted within two years from the expiration date of the underlying contract.
Filing a claim before the CCC is optional, meaning that a contractor may directly file a case before the competent court rather than filing a request before the CCC. Bringing a claim before the CCC is usually an attempt to settle claims amicably to save time and cost for the parties, rather than resorting to the courts. Due to the technical nature of these claims, the CCC may second experts to provide their technical expertise in evaluating such claims.
The CCC does not render decisions; rather it submits its findings and recommendations to the Minister of Finance. The Minister is the competent authority to issue a decision in respect of the claim. The Minister’s decision may include certain conditions, including, for example, a requirement that a contractor will not attempt to seek additional compensation for the same issue. If the applicant contractor is satisfied with the Minister’s decision, the contractor would be expected to sign a settlement and discharge agreement. If the Minister’s decision is not satisfactory to the contractor, then the contractor may have recourse to the competent court to initiate court proceedings against the contracting governmental entity.