You participated in a public tender, met the requirements, submitted your proposal, and still were left out. Or worse: the solicitation contained conditions that made it impossible to compete on equal terms. What can you do? The law gives you a concrete tool: the protest filed before the Secretariat of Public Administration (SFP). It is a challenge mechanism that few companies know in depth, and whose effectiveness depends almost entirely on being filed correctly and within the established deadlines. 

What is the protest filed before the SFP and what is it for?

The protest proceeding is brought before the Secretariat of Public Administration and aims to challenge the different acts of the public tender procedure or of an invitation to at least three persons, such as the solicitation and clarification meetings, the act of submission and opening of proposals, the award decision, the cancellation of the tender, and in general the acts or omissions of the contracting authority that prevent the formalization of the contract.

The protest proceeding is the instrument available to private parties to challenge the acts they consider irregular in public tenders. It is, at the same time, a means through which the federal government monitors and controls its own acts, in order to ensure compliance with the mandate imposed by Article 134 of the Constitution, consisting of administering public resources with efficiency, effectiveness, economy, impartiality, and honesty.

Its legal basis is found in Articles 65 to 76 of the Public Sector Acquisitions, Leasing and Services Law (LAASSP) and in Articles 83 to 94 of the Public Works and Related Services Law (LOPSRM). This remedy is one of the pillars of legal defense in public tenders and government contracts, since it makes it possible to reverse arbitrary decisions before their effects are consummated.

A critical point that many companies ignore: the protest proceeding is only available for invitation to at least three persons and public tender procedures. In direct awards, it is not possible to file protests. If your company is facing this last scenario, it is worth exploring whether the direct award itself can be challenged through other means; for that purpose, it is useful to know whether it is possible to challenge a direct award in public tenders.

Who can file a protest before the SFP and against which acts?

Not just anyone can protest at any time. The law is specific regarding who has standing to act and against which act it may be done. The following table summarizes the main scenarios under the LAASSP and the LOPSRM:

It is important to note that in the case of international tenders under treaties, the deadline to file protests must be 10 business days, so as not to contravene what is set forth in international treaties with a government procurement chapter.

Where and how is the protest filed?

The protest must be filed in writing, directly at the offices of the Secretariat of Public Administration, through CompraNet, or before the offices of the local authority, subject to prior agreement and indication in the tender documents.

The electronic route through CompraNet is the fastest and the most commonly used in current practice, since it allows the written filing in real time and provides immediate acknowledgment of receipt. However, if you choose physical filing, you must do so at the offices of the General Directorate of Controversies and Sanctions in Public Procurement of the SFP.

A common mistake: filing the protest in the wrong form or before an authority other than the one indicated will not interrupt the deadline for its timely filing. In other words, filing it in the wrong place does not stop the clock or protect you from lateness.

What must the protest submission contain in order to be admitted?

The content of the protest submission is expressly regulated by law. Omitting any of these elements may result in a warning to cure defects or, in the most serious cases, outright dismissal. The mandatory elements are:

• Name of the protesting party and of the person filing on its behalf, with proof of representation through a public instrument.

• Address for receiving personal service, located in the place where the authority hearing the protest is based. If no procedural address is indicated under these terms, notices will be served by bulletin board.

• The act being challenged, the date of its issuance or notification, or failing that, the date on which it became known.

• The evidence offered must have a direct and immediate relationship with the acts being challenged. In the case of documentary evidence that forms part of the contracting procedure and is in the possession of the contracting authority, it will be enough for it to be offered so that the authority must submit it in certified copy when filing its detailed report.

• The underlying facts or omissions of the challenged act and the grounds of protest stated as grievances.

• Copies of the initial submission and its attachments to serve notice on the contracting authority and the interested third party (the bidder who was awarded the contract).

As to this last point, the protest submission must be accompanied by corresponding copies of the initial submission and attachments for the contracting authority and the interested third party, the latter being the bidder to whom the contract was awarded.

Additionally, the making of false factual statements will be sanctioned in accordance with the provisions of this Law and any others that may be applicable.

How does the protest procedure unfold step by step?

Once the written submission is filed, the procedure before the SFP follows these stages:

1. Admission or warning: The SFP reviews whether the submission complies with the formal requirements. If it detects a curable omission, it will issue a warning giving you three business days to cure it. If you do not respond within that period, the remedy will be dismissed.

2. Detailed report: The contracting authority files its report explaining and justifying the challenged act. As of the instruction order, there is a period of the following fifteen business days for the authority hearing the protest to receive the report.

3. Extension of grounds of protest: The protesting party, within three business days following the date on which the detailed report is deemed received, will have the right to expand its grounds for challenge when the report shows that there were acts it had no prior knowledge of.

4. Notice to the interested third party: The SFP must give notice to the interested third party for a period of three business days following service of that order so that it may state whatever is in its interest.

5. Presentation of evidence and arguments: Once the evidence of the parties involved has been heard, the proceedings will be made available to the protesting party and the interested third party so that, within three business days, they may submit their arguments.

6. Decision: The SFP issues its decision, which may declare the protest founded or unfounded, dismiss the remedy, or order the total or partial nullity of the contracting procedure.

What effect does the protest have on the contracting procedure?

This is one of the most relevant questions for tender participants: does filing a protest stop the contracting process?

The answer depends on the challenged act and the circumstances of the case. The LAASSP establishes suspension mechanisms that may be triggered during the processing of the protest, particularly when there is a risk that a contract will be signed and the effects of the challenged act thereby become irreparable.

The possible outcomes of the SFP's decision are:

• Dismissal: The protest is declared moot or inadmissible for formal reasons.

• Unfounded: The SFP considers that the challenged act was lawful and in accordance with the law.

• Founded with total nullity: The entire tender procedure is voided.

• Founded with nullity for purposes: The specific challenged act is voided, with instructions for the contracting authority to repeat the procedure from the tainted stage onward.

• Founded with instructions to formalize the contract: When the challenged act was precisely the refusal to sign the contract with the awardee.

If the protest is found to be founded and the contract has already been signed, the practical effect may lead to administrative liability for the public servants involved. This connects directly with the regime of responsibilities under the General Law of Administrative Responsibilities: understanding what a serious administrative offense is and how to defend yourself before the ASF or the SFP is essential to understanding the full picture of consequences that may arise from an irregular tender.

When is a protest before the SFP inadmissible or subject to dismissal?

Knowing the grounds for inadmissibility and dismissal is just as important as knowing how to file the remedy, because it avoids investing time and resources in a path that is blocked from the outset. The main grounds of inadmissibility are:

• When a different act is challenged from those expressly set forth in Article 65 of the LAASSP (for example, direct awards).

• When the act has been expressly or tacitly consented to (that is, when it was not challenged in time).

• When the challenged act can no longer produce any legal or material effect, because the object or subject matter of the contracting procedure has ceased to exist.

• When the bidder who participated jointly files individually.

As for dismissal, it mainly applies when the protesting party expressly withdraws its remedy or when, during the proceeding, a supervening ground of inadmissibility arises.

What should you do if the SFP's decision is unfavorable?

If you have exhausted the protest proceeding and the decision was not favorable, the path is not closed. You have at least two additional options:

• Administrative contentious proceeding before the Federal Court of Administrative Justice (TFJA): You may challenge the SFP's decision before this court, which will conduct an independent review of the case. This proceeding allows for a deeper review of both the facts and the legal arguments.

• Amparo proceeding: If the SFP's decision or the protest procedure violated fundamental rights (such as the right to be heard or the guarantee of legality), you may seek amparo before the Federal Judiciary.

In cases involving public works contracts or services where the contractual relationship has already begun but disputes arise in its performance, the defense shifts to a different field. Knowing how public contract performance works and what the dispute-resolution mechanisms are at that stage is essential to protect the company's interests beyond the bidding process. Likewise, if your company is facing collection problems from government agencies, it is worth understanding the mechanisms of government collection to recover outstanding debts as a complement to the defense strategy.

Protest before the SFP: what every government supplier company should know

The protest before the SFP is a powerful tool, but it only works when used properly. The deadlines are very short (six business days in most cases), standing is limited, and the formal requirements of the written submission are strict. A poorly drafted protest, filed late, or filed before the wrong authority does not interrupt any deadline and is simply lost.

If your company regularly participates in public tenders or restricted invitation procedures, the most advisable course is to identify in advance the possible acts subject to challenge at each stage of the procedure, document any irregularity from the moment it occurs, and have specialized advice ready to act in the first hours after the challenged act.

Frequently asked questions 

Does the protest remedy have any cost to file?

No. Filing the protest before the SFP is free. No fees or charges of any kind are required to access this proceeding.

Can I protest the award decision directly?

No appeal will lie against the resolution containing the award decision; however, the protest filed by bidders under the terms of Article 65 of this Law is available. In other words, technically you do not challenge "the award decision" as such, but rather the acts that make it up (opening of bids, technical and economic evaluation, award criteria). The difference is procedural, but important for properly drafting the grievances.

Can I file the protest if I participated but did not win, even though I do not know exactly why?

Yes, as long as you submitted a bid. The law grants you the right to know the reasons why your proposal did not win. The agencies and entities will provide bidders in writing with information about the reasons why their proposal did not win. That information is essential for building the grounds of protest.

What happens if I participated in the consortium and only one of the members wants to file a protest?

In all cases involving bidders who have submitted a joint bid, the protest will only be admissible if it is filed jointly by all of its members. It is not possible for only one member to act individually if the proposal was joint.

Can the SFP open an ex officio review even if no one has filed a protest?

Yes. If the SFP becomes aware, through its verification powers, of any fact or act contrary to the regulations, it may intervene ex officio in reviewing the legality of all acts related to the contracting procedure. This is independent of whether or not there is a protest filed by any bidder.

Can I withdraw my protest once it has been filed?

Yes. Withdrawal is a way to conclude the protest proceeding and is allowed by law. However, once withdrawn, you will not be able to file the same protest again for the same facts.

Do the contracting authority's errors in the procedure always lead to total nullity?

Not necessarily. The SFP may order total nullity or nullity for purposes, depending on the severity and scope of the irregularity. If the defect can be cured and does not taint the entire procedure, the most likely outcome is that only the affected stage will be repeated.