Abstract: I. Introduction and Statement of the Problem. II. The Santa Fe Legal Framework. Law No. 14,428 and the Duty to Collaborate. III. The Evaluation Committee. Legal Nature of the Pre-Award Report. IV. Limits to Solve et Repete in Public Procurement and the Primacy of Objective Legality. V. Conclusion.

By Pablo A. Franchi () and Lisandro E. Castagno ()

I. INTRODUCTION AND STATEMENT OF THE PROBLEM

The procedure for selecting the State’s contractual partner is structured as an iter subject to multiple pre-established formalities, which are intended to guarantee legality, equality, participation, transparency, competition, and the selection of the offer most advantageous to the public interest. Far from being a mere mechanism for acquiring goods, services, or works, it constitutes an institutional guarantee of the legality of administrative action and an essential instrument for protecting public assets.

Historically, legal scholarship and case law have debated the scope of bidders’ prerogatives vis-à-vis the Administration’s preparatory acts, particularly the so-called Pre-Award Report within the framework of a public tender as the standard procedure for selecting a contractor.

The introduction of economic barriers, in the form of guarantees or fees for filing challenges, has ultimately created a subtle mechanism of procedural exclusion which, naturally, limits the effective exercise of bidders’ right to identify illegalities or irregularities capable of affecting the transparency and legitimacy of the procedure and, consequently, constitutes an affront to the principle of effective administrative protection.

Against this backdrop, there arises a need to conceptualize the figure of an observation submitted without the intention of challenging an administrative act as a legitimate manifestation of the principle of collaboration and of legality oversight; that is, as an autonomous category, based on the essential premise that the bidder becomes a collaborator of the contracting Administration from the very moment it submits its bid within the procedure.

It is therefore a genuine collaborative observation, aimed at facilitating the proper administrative decision, whereby the bidder’s role transcends that of a mere party interested in the award and assumes an institutional role as a collaborator of the Administration in achieving the public interest at stake in the procurement procedure.

Anyone who regularly participates in a public tender not only exercises subjective rights or legitimate interests, but also contributes—by identifying irregularities detected during the procedure—to strengthening administrative legality, competitive equality, and transparency in public procurement.

Under this conception, we understand that challenge guarantees or deposits are constitutionally and legally enforceable only when the party concerned files a genuine administrative challenge seeking the review of an act capable of causing prejudice. Conversely, when the submission merely constitutes an observation made in the exercise of the duty to collaborate with the Administration and of preventive legality oversight, such economic requirements lack legal grounds, since there is no challenge in the proper sense, but rather a manifestation of the principle of good administration, procedural participation, and the State’s duty to adopt decisions consistent with the legal system.

II. THE SANTA FE LEGAL FRAMEWORK. LAW NO. 14,428 AND THE DUTY TO COLLABORATE

It must necessarily be emphasized that the public-law framework of the Province of Santa Fe has recently undergone a significant change with the enactment of Law No. 14,428 on Administrative Procedure (Official Gazette, December 26, 2025).

Article 4(d) of this body of legislation expressly establishes the duty of individuals and legal entities to collaborate with the State in the performance of administrative functions.

This duty does not, of course, amount merely to a passive attitude of submission; on the contrary, within the framework of a public tender, the bidder becomes a technical collaborator of the Administration in the search for material truth.

Certainly, when a participant submits evidence demonstrating that the proposal recommended for pre-award is not the most advantageous offer, it is not necessarily asserting a purely self-interested claim, but rather cooperating with the procuring authority to prevent the consolidation of a defective administrative act which, ultimately, would harm the public treasury.

Indeed, the pre-award recommendation may be modified by the competent authority; hence the need to accept, without further qualification, observations that assist the contracting authority in its task of selecting the offer most advantageous to the Administration’s interests.

This therefore constitutes a form of multidirectional oversight within the framework of a pre-award recommendation, particularly because the party receiving the pre-award recommendation has no vested right to ultimately be awarded the contract.

Precisely for these reasons, specialized legal scholarship considers it fundamentally important that all submissions be served ex officio, in a multiple and reciprocal manner, with unrestricted access to the administrative proceedings, so that each bidder has a formal and simultaneous opportunity to object to the other bids.

It is understood that such objections will require the Administration to undertake an even broader and more systematic comparative examination of the bids, and it is precisely this comprehensive assessment that the Administration must conduct when selecting the offer.

The fact remains that these objections, challenges, or observations constitute a right of bidders from the moment the bids are opened, without any concept of procedural forfeiture being applicable. Rules are sometimes enacted providing that challenges be processed separately; however, when they concern the bids submitted by other bidders, it is obvious that they must be taken into account when preparing the report at the proposal-evaluation stage. This task is commonly carried out by the so-called Evaluation or Pre-Award Committee, failing which the Administration risks acting unreasonably by deliberately disregarding part of the proceedings.

In this regard, it has been stated that an award cannot properly be recommended to any bidder without first having considered the admissibility or inadmissibility of its bid and its advantages or disadvantages in light of the technical and legal documentation and the arguments submitted by the other bidders, whether on their own initiative or at the Administration’s request.

This latter reasoning, expressed with the characteristic acuity of the distinguished author, must be linked to the fact that the Evaluation Committee—which we shall examine in greater depth in the following section—as a decentralized, collegiate, consultative, ad hoc, and specialized technical body, although it lacks direct decision-making powers, must issue a report as a mandatory requirement for the validity of the procedure, thereby operating as a guarantee of procedural due process.

It is therefore essential that officials recognize the practical relevance of these observations and of this debate among bidders, since it not only contributes to the principle of transparency but also makes it possible to better assess and substantiate the decision adopted or, where appropriate, to modify the decision resulting from the pre-award recommendation. The latter, however, rarely occurs in practice, since administrative decision-makers tend to be reluctant to change course.

Indeed, the members of Evaluation Committees generally fail to recognize the principle of collaboration underlying these submissions, even when they are sufficiently substantial to disqualify the preselected offer.

Although such observations could be useful to the Evaluation Committee in analyzing the bids, the Committee often takes refuge in the argument that they do not possess the characteristics of a formal challenge requiring specific consideration by that collegiate body.

Based on this erroneous understanding, it is concluded that the observations submitted are not binding upon the Evaluation Committee, which will assess their merits and, where appropriate, resort to the procedure for curing non-substantive deficiencies.

It is true that this type of observation is not binding; that argument is not disputed. What is required, however, is that submissions containing such observations be duly considered by the Committee and form an essential part of the comprehensive assessment of the bids—a circumstance that, unfortunately, does not usually occur.

III. THE EVALUATION COMMITTEE. LEGAL NATURE OF THE PRE-AWARD REPORT

Evaluation Committees, also known as Pre-Award Committees, constitute a technical administrative advisory service—either permanent or ad hoc—whose technical and consultative competence is expressed through the pre-award recommendation, which constitutes a proposal or advisory opinion addressed to the administrative body responsible for making the award. Although it takes the form of an opinion or report, it is subject to publicity requirements and may be challenged. Let us examine this further: technically speaking, the Evaluation Committee is the body responsible for expressing a specialized opinion or assessment addressed to the official competent to decide the conclusion of the procedure.

The importance of its function is evident, since it provides that official—the highest authority of the jurisdiction in which the Committee has been established—with the technical support necessary to make the decision. In other words, it is the body responsible for making the preliminary award assessment, evaluating the bidders’ proposals and issuing an expert assessment as to which appears preferable, thereby making a pre-award recommendation. The Committee’s opinion must contain:

a) details of all the elements and requirements pertaining to each of the potential candidates for the award;

b) identification of admissible and inadmissible bids;

c) an indication of the duly substantiated grounds that render such bids rejectable, as well as identification of those that comply with the specifications set forth in the invitation to tender, highlighting, in each case, any potential advantages of the offer and establishing the corresponding ranking based on the evaluation conducted.

Basically, the Committee must carry out a comprehensive assessment of each and every bid submitted and, ultimately, make a recommendation based on quantitative and qualitative selection criteria. Among all the matters to be addressed, we obviously include a precise analysis of each observation that may have been submitted.

In practice, however, such report is often reduced to a terse form: isolated rows and columns that in no way justify the preselection other than by means of the brief statement: “complies with the tender specifications.”

Naturally, this manifest lack of reasoning is plainly arbitrary, and such arbitrariness will inevitably carry over into the subsequent administrative award decision, since the latter will not be the result of a logical process consistent with the applicable procedure. This proposition is consistently shared by legal scholarship, case law, and even opinions issued by the Office of the State Attorney General of the Province of Santa Fe, insofar as they hold that the preparatory administrative activity of the Committee cannot be exempt from the requirement of reasonableness that must characterize all administrative activity in order to produce valid legal effects (Opinions 114:124).

In Santa Fe, pursuant to Article 139(i)(3) of Decree No. 1104/2016, as amended by the recently enacted Decree No. 0287/2026, the Pre-Award Report is expressly non-binding upon the decision-making authority.

Although Decree No. 0287/2026 requires a 3% guarantee for a formal challenge, Law No. 14,428 itself provides that interested parties are not required to submit information already held by the State (Article 4(c.1)).

Therefore, if a bidder submits a simple observation stating that the pre-award recipient has provided false information or fails to comply with the tender specifications, the Administration may verify this ex officio by consulting its own databases or the Unified Registry of Suppliers (RUPC), now digitally unified pursuant to the same aforementioned Decree.

It must be made clear that when a bidder submits an observation without intending to file a challenge, it is not disputing the Evaluation Committee’s discretionary assessment or its margin of appreciation regarding technical convenience. Rather, it is reporting a breach of strict legality or a defect affecting the requirements of admissibility or eligibility.

Since this constitutes a legality review, the Committee cannot casually claim that the submission “is not binding” or that it lacks the applicable fee in order to disregard it.

According to the classic categorization found in legal scholarship, this is a preparatory act in the formation of administrative will, devoid of direct and immediate legal effects upon third parties. It is an interlocutory administrative act that does not yet produce the definitive effects of the award, but is nevertheless subject to administrative challenge. It is therefore not only lawful but necessary for this preparation of the administrative will to have a sufficiently thorough and transparent foundation—the Pre-Award Report.

It is merely an act of the Administration, preparatory to the formation of the contractual will; the pre-award recipient holds only a legitimate interest.

Along the same lines, the Office of the Treasury Attorney General of the Nation (PTN), as well as the Office of the State Attorney General of the Province of Santa Fe, have consistently held that a consultative opinion does not constitute a final administrative determination nor create a subjective right to the award. Accordingly, it is contradictory for the Administration to rigidly tax or impose a fee upon the possibility of submitting observations concerning a merely provisional opinion, treating any substantive submission as a formal challenge subject to the prior deposit of three percent (3%) of the quoted amount.

Any clause that makes the admissibility of a challenge to the Pre-Award Report conditional upon the prior deposit of a guarantee whose refund is provided for only where the challenge is fully upheld is legally untenable and manifestly illegitimate. A regime of this nature distorts the preventive purpose of the guarantee and effectively transforms it into an economic sanction imposed merely for exercising the right to petition and to oversee the legality of the administrative procedure.

Indeed, the automatic forfeiture of the deposit merely because the challenge does not succeed transforms the exercise of a procedural right into an activity carrying a financial risk, creating a clearly deterrent effect incompatible with the principle of effective administrative protection and with the Administration’s duty to ensure access to suitable mechanisms for reviewing its own preparatory acts.

The acceptance of a clause of this nature would also substantially undermine the principle of cost-free administrative proceedings. Unlike judicial proceedings—in which the intervention of an independent judicial body justifies the collection of a court fee intended to support the administration of justice—administrative proceedings constitute an activity carried out by the Administration itself in the exercise of its administrative function and in fulfillment of the principle of legality. Consequently, access by individuals to internal mechanisms of participation, observation, and challenge cannot be conditioned upon payment of an economic charge operating as an access barrier.

Ultimately, when a guarantee ceases to perform a merely regulatory function intended to prevent frivolous challenges and instead becomes an unavoidable cost of exercising the right of defense, it loses all constitutional reasonableness. Under such circumstances, the requirement ceases to be an instrument for protecting the effectiveness of the procedure and becomes a mechanism discouraging administrative legality review, incompatible with the principles of good administration, due process, and effective administrative protection.

The Administration does not charge a fee for reviewing the legality of its own acts. In other words, the individual should not be required to finance the State’s exercise of its duty to review the legality of the procedure. That duty exists even when no one files a challenge.

The observation merely brings a potential defect to light, but the party constitutionally and legally responsible for verifying legality is the Administration itself.

From this perspective, requiring a deposit as a condition for the State to exercise a duty incumbent upon it amounts to shifting onto the private party the cost of reviewing the legality of administrative action, which constitutes manifestly unconstitutional conduct.

IV. LIMITS TO SOLVE ET REPETE IN PUBLIC PROCUREMENT AND THE PRIMACY OF OBJECTIVE LEGALITY

The requirement of a prior deposit or the provision of a guarantee as a condition for the admissibility of challenges against the Pre-Award Report is theoretically based on the need to preserve the continuity of the tender procedure by discouraging manifestly unfounded, abusive, or merely dilatory claims that could hinder the selection of the State’s contractor and jeopardize the timely satisfaction of the public interest.

From this perspective, the challenge guarantee constitutes a procedural regulatory technique intended to discourage the abusive exercise of the right to challenge, seeking an appropriate balance between legality review and the efficiency of administrative action. Its purpose, therefore, is not to restrict access to administrative review mechanisms, but rather to prevent conduct incompatible with procedural good faith.

For these reasons, we may state that such guarantees require bidders to think twice before filing a frivolous challenge, thereby limiting the actions of those who do not genuinely intend to collaborate with the Administration and therefore do not seek to identify substantial deficiencies in other submissions in order to prevent an arbitrary future award decision, but are motivated solely by a desire to obstruct the normal development of the procedure.

Likewise, in the selection of the State’s contractual partner, the cost-free nature of administrative proceedings is not affected in cases where tender specifications must be obtained by interested parties upon payment of a sum covering reproduction costs, nor by the requirement to provide bid or performance guarantees.

This is because such measures are intended to ensure the seriousness of the proposal or the proper performance of the contractual obligations undertaken by the State’s contractual partner.

However, when such economic requirement operates as an unavoidable prerequisite for the Administration to examine circumstances that could reveal substantial defects in the selection procedure, it ceases to perform a regulatory function and becomes a genuine form of administrative solve et repete.

In such cases, the individual is required to bear a prior financial burden so that the Administration will perform a duty that is inherently its own: verifying the legality of its actions before adopting the final decision.

Thus, the clause establishing a prior deposit or guarantee as a condition for challenging the pre-award recommendation lacks the justification applicable to the aforementioned guarantees or the purchase of tender specifications, and cannot be justified by the purpose of discouraging dilatory challenges, given that such challenges have no suspensive effect.

It is precisely here that the constitutional and administrative limits of this technique arise. Unlike the traditional tax-related solve et repete—whose rationale lies in the presumption of legitimacy and enforceability of tax claims—in a public procurement procedure there is neither a revenue-raising interest nor a pre-existing monetary obligation that would justify shifting the cost of administrative review onto the bidder.

Consequently, the challenge guarantee cannot be interpreted or applied in such a way as to prevent the Administration from learning of facts or circumstances capable of affecting the legality of the procedure.

The principle of objective legality, the duty to seek material truth, and the ex officio review of administrative activity require every serious and well-founded observation to be examined regardless of compliance with economic requirements whenever it could reveal the illegitimacy of the future award.

It is also worth noting that the case law of the Supreme Court of Justice of the Nation (CSJN) in Astorga Bracht, as well as more recent opinions of the Treasury Attorney General of the Nation (PTN), have eroded the absolute validity of such restrictive clauses when they operate as an insurmountable barrier to due process and effective administrative protection, the latter being enshrined in Article 3 of Law No. 14,428.

Accordingly, if a bidder submits observations without making the required guarantee deposit, the Administration cannot automatically reject the submission in limine if its contents reveal the existence of a serious defect giving rise to absolute nullity or a flagrant violation of the principles of equality and transparency (Article 115, Law No. 12,510).

It must not be overlooked that the Public Administration is not called upon merely to resolve claims brought by private parties, but primarily to satisfy the public interest by adopting decisions consistent with the legal system.

This means that throughout the entire administrative procedure, the Administration bears the duty to seek material truth and safeguard objective legality, principles that displace any strictly dispositive conception of administrative proceedings.

From this perspective, when a bidder brings to the attention of the procuring authority circumstances revealing the inadmissibility of an offer, the existence of a material breach of the tender specifications, or any other defect capable of affecting the legitimacy of the future award, the Administration cannot disregard such information on merely formal or superficial grounds, much less require prior compliance with economic requirements before examining it.

What is decisive is not the designation given by the interested party to its submission, but rather the Administration’s legal duty to verify the legality of the facts reported.

In this context, the rationale underlying Article 24 of Provincial Law No. 14,428, which regulates the so-called complaint of illegitimacy, is fully applicable by analogy of principles. Although that legal mechanism was conceived to permit the examination of appeals filed out of time, its rationale extends beyond that specific situation and rests upon the prevalence of the principle of objective legality over excessive formalism.

The complaint of illegitimacy is the broader category; the collaborative observation is a preventive form thereof. In other words, while a complaint of illegitimacy operates after an administrative act has been issued, allowing the Administration to reconsider a potential illegality despite the untimeliness of the appeal, the aforementioned observation operates before the final act is adopted, with an even more intensive purpose: preventing the illegality from becoming consolidated through the award itself.

This is so because if the Administration retains a duty to examine an untimely submission when it reveals a possible illegality in its acts, then, a fortiori, it must examine an observation submitted during the procurement procedure itself, before the final decision has been adopted.

In this case, the bidder’s observation therefore does not constitute merely an expression of subjective dissatisfaction, but rather a genuine mechanism for collaboration with the exercise of the administrative function and a manifestation of the principle of objective legality within the public procurement procedure.

As anticipated above, anyone participating in a public tender forms part of the procedure and occupies a privileged position from which to identify breaches of the tender specifications, errors in the technical evaluation, or circumstances that could go unnoticed by the Administration. Disregarding such observations for exclusively procedural reasons would amount to deliberately relinquishing a suitable source of information for the proper exercise of legality review.

Consequently, if the Administration fails to consider an observation revealing a serious defect in the preselected bid and nevertheless issues the award decision, that decision will be affected in its essential elements, particularly its grounds and subject matter, pursuant to Article 10 of Law No. 14,428.

The illegality will no longer derive solely from the successful bidder’s breach of the tender specifications, but also from the Administration’s failure to exercise the legality review imposed upon it by the legal system. Under such circumstances, the award will be exposed both to revocation through administrative channels and to subsequent judicial challenge.

Ultimately, an observation submitted by a bidder does not constitute a burden upon the Administration, but rather a manifestation of the principle of procedural collaboration and an instrument intended to facilitate compliance with its constitutional and legal duty to issue administrative acts fully consistent with the principle of legality.

Material truth and objective legality cannot be subordinated to procedural formalities, much less conditioned upon the prior deposit of an economic guarantee so that the Administration will exercise a duty that is inherently its own.

V. CONCLUSION

A systemic analysis of the public-law framework governing the Province of Santa Fe, in light of its recent regulatory developments, allows us to reach the following conclusions:

V.1. The enactment of Law No. 14,428 has broken with the paradigm of bidder passivity within the procurement iter. By expressly establishing the duty to collaborate with the State (Article 4(d)), the submission of observations concerning the Pre-Award Report is stripped of its purely self-interested character and becomes a procedural duty of technical cooperation aimed at establishing material truth and preserving the objective legality of the procedure. The bidder who submits an observation does not act against the Administration; on the contrary, it assists it.

V.2. Although the regime established by Decree No. 0287/2026 provides for a three-percent (3%) guarantee for filing a formal challenge to the provisional pre-award opinion, such economic barrier is inapplicable when what the private party submits is merely a collaborative observation concerning legality. Requiring the payment demanded by solve et repete or the provision of guarantees in order to hear a complaint concerning absolute nullity constitutes a flagrant affront to the principle of cost-free administrative proceedings and to effective administrative protection.

V.3. The Evaluation Committee cannot take refuge behind the non-binding nature of observations or the absence of a fee in order to order their automatic rejection in limine. By analogy with the legal mechanism of the complaint of illegitimacy (Article 24, Law No. 14,428), and in safeguarding the principle of flexibility in public procurement, the Administration has an unavoidable duty to verify ex officio the facts and circumstances reported.

V.4. The decision to casually disregard a substantive observation under the pretext of excessive formalism determines the fate of the procurement procedure, since a final award decision that deliberately ignores duly substantiated warnings submitted by its bidders will suffer from an incurable defect in its grounds and subject matter (Article 10, Law No. 14,428), leaving it exposed to an inevitable and immediate judicial challenge to its legality.

In short, the observation submitted without an intention to challenge—or collaborative observation, as we prefer to call it—constitutes an indispensable component of modern procedural due process, protects public funds, dignifies the ethical role of the bidder as a collaborator of the Administration, and guarantees objective legality, preventing discretion in the search for the most advantageous offer from becoming the prelude to arbitrary rule.

Notes

(1) GORDILLO, Agustín, https://gordillo.com/pdf_tomo2/capitulo12.pdf, p. 515.

(2) PTN: Opinions, Volume 327, p. 101, Year 2023.

(3) DROMI, Roberto, Administrative Law, 11th Edition, Ed. Ciudad Argentina, p. 531; see also: PTN: Opinions, Volume 253, p. 167, Year 2005.

(4) PTN: Opinions, Volume 234, p. 472, Year 2000.

(5) Office of the State Attorney General of the Province of Santa Fe: Opinion No. 0067, Year 2002. Case File No. 00101-0060343-8.

(6) GORDILLO, Agustín, https://gordillo.com/pdf_tomo2/capitulo12.pdf, p. 520.

(7) DROMI, Roberto, Administrative Law, 11th Edition, Ed. Ciudad Argentina, p. 531.

(8) See Law No. 19,549, as amended, Article 1 bis(c), second paragraph; and, at the provincial level, Law No. 14,428, Article 3.

(9) PTN, Opinions: Volume 257, p. 151, Year 2006.

(10) CSJN: Astorga Bracht, Sergio y otro c/ COMFER – Decreto N° 310/98 s/ amparo Ley 16.986.

(*) Attorney, National University of Rosario (UNR), specialized in Business Law, former Undersecretary of Legal and Technical Affairs of the Province of Santa Fe – Founding Partner of the law firm “Castagno, Franchi & Marcos – Abogados.”

(*) Attorney, National University of Rosario (UNR), specialized in Administrative Law, former Secretary of Legal and Technical Affairs of the Province of Santa Fe – Founding Partner of the law firm “Castagno, Franchi & Marcos – Abogados.”