During the tendering process, there may be situations in which the rights of participants may be violated.
In order to avoid violation of the procedure by any tender participants for procurement, such as the customer or other interested persons, the legislation of Ukraine provides for the procedure of appeal of the tender.
Article 1 of Law No. 922 defines tenders as competitive contests of participants for the purpose of determining the winner. This is "reduction" or auction on the contrary. It is won by the participant, who has made the best offer.
In the article on state procurement, you can learn more about the role of public procurement in Ukraine and what the procedures for their implementation are. You can read the details about tenders and rules of tendering process in the article Tender documentation.
The law on public procurement states that the procedure of appeal of the tender takes place through the electronic system that exists to communicate with the appeal body. This article will tell in detail what kind of body it is, what requirements are imposed on complaints and how this procedure takes place in Ukraine.
Part 3 of Art. 8 defines that the Antimonopoly Committee of Ukraine is a body to which you can file a complaint against violations in the field of public procurement. Law No. 3659-XII is a normative legal act that defines the basis for the activities of this body.
It should be noted that the Antimonopoly Committee is not only a guarantor of transparency of operations in the field of tenders, but also provides protection of competition in the business sphere at the state level.
The President of Ukraine shall control the Antimonopoly Committee. This body shall provide an annual report on its activities to the Verkhovna Rada of Ukraine.
Acquaintance with the main functions of the Antimonopoly Committee of Ukraine will allow to learn more about the nature of its activities. The main purpose of the body is a law enforcement in the field of competition, as stated in Article 3 of Law No. 3659, defining its tasks:
In order to understand who will consider complaints of violations in the field of tenders and in what way, it's necessary to understand which body on behalf of the Antimonopoly Committee will deal with this.
In the field of public procurement tenders, such a body is the Permanent Administrative Board. It deals with consideration of all complaints filed by the participants in the procedure. After consideration, the Board shall take final decision on behalf of the Antimonopoly Committee.
The name implies collegiality in taking decisions, which in fact corresponds to the truth. On behalf of the Antimonopoly Committee, three commissioners, who are appointed on the proposal of the Prime Minister of Ukraine, are engaged in consideration and adoption of decisions. The basis for submission is the proposal of the Chairman of the Antimonopoly Committee. The commissioners may be relieved of their positions by the President of Ukraine. Powers are given to them for a period of 7 years.
The legislation of Ukraine presents the candidates for commissioners a set of conditions, allowing them to consider complaints at the competent level, and then to take decisions on them:
In order to avoid a conflict of interests, a member of the board is prohibited to have any connection with any of the parties to the instant case. When establishing this fact, it should be replaced by another commissioner.
In the future, when using the words "Antimonopoly Committee" and "appeal body", the Permanent Administrative Board will be meant because in this case these words have the same meaning.
Article 18 of the Law stipulates all requirements for the proper preparation of complaints.
It was already mentioned that any complaint to the Antimonopoly Committee shall be submitted in electronic form. There is a special website https://prozorro.gov.ua/ in the state for complaints about tenders and other public procurement
It is allowed to appeal the offenses committed by the customer at any stage of the tender procedure or any other public procurement. The essence of the appealed tenders doesn't matter.
There are clear requirements to the contents of the complaint, established by the legislation, and specific points required to specify in its preparation:
All documents confirming the offense shall be attached to the complaint. They will serve as proof of its legitimacy.
Further the documents confirming the payment will be discussed.
After the appeal in electronic form, a complaint is entered in the register of the electronic procurement system. A separate registration card is also formed. The Authorized Body for complaint investigation has a resource https://prozorro.gov.ua/. registration card is automatically published on the day of registration.
Information contained in the complaint registration card:
After publication on the website, the complaint will be immediately sent to the appeal body and the customer. A registration card and other supporting documents accompany it.
The lack of timely payment for the consideration of the complaint is the most common mistake of complainants. The amount of payment is determined by the special resolution of the Cabinet of Ministers of Ukraine and depends on the specific tender:
It's important to remember that after registration of the complaint in the Antimonopoly Committee, the paid funds are not subject to return at any outcome of proceedings.