If the rights or interests of the tender participant have been violated, he has the right to file a complaint against the customer with reference to the terms of the tender specified in the documentation. At the same time, it is necessary to file a complaint in accordance with the instructions given in the text of Article 18 of the Law of Ukraine On Public Procurement. The texts of complaints are considered by the commission, which is called the Administrative Board for the consideration of complaints about violations of legislation in the field of public procurement of the Antimonopoly Committee of Ukraine. The same Board makes a decision on the satisfaction or rejection of the complaint of the tender participant.
In the text of this article, we have divided all the reasons why a tender participant can file a complaint against the customer into several main groups. Below are the most common reasons for challenging the terms of public tenders by participants. The analysis did not take into account complaints that were partially or completely satisfied with the decision of the Antimonopoly Committee of Ukraine.
If we distinguish groups of reasons for which the participant complains about the terms of the tender from the state customer, then they can be divided as follows, depending on the issues that are disputed:
- Purchase item itself;
- Documents and information that indicate the participant's compliance with the terms of the tender;
- Technical proposal;
- Implementation of the tender offer;
- Draft purchase agreement;
- General criteria;
- Errors in documents that are of a formal nature.
Below we will look at the specifics of filing complaints for each of the above reasons.
When the participant appeals the subject of the purchase
Most often, the essence of the complaint about the subject of the purchase itself is that the customer combines several types of products into one lot. This inevitably leads to monopolization of procurement and violation of the very principle of tenders. In addition, participants often file complaints if they find that positions that are "unique" from their point of view were not divided into separate lots.
A concrete example can be given – the state customer has included in the subject of purchase six medicines having a similar composition and active substance, but different trade names. There are violations of the rule "one product or service – one lot". In this case, the Antimonopoly Committee found the customer guilty of a violation and ordered to make changes to the tender documentation, dividing the drugs into six different lots (see RU-2019-08-08-000508-a).
Qualification documents and requirements: in which cases complaints are filed?
The practice of filing such complaints is more extensive. We can name the following common cases of appeal of qualification requirements, when the customer requires to provide:
- copies or directly originals of documentation that were submitted through the ProZorro system.
- documents or certificates that duplicate information from documents submitted earlier;
- specific document confirming the information, if it can be confirmed with the help of other documentation;
- recommendations and feedback on cooperation with this participant from other customers or from the state customer himself.
In addition, frequently complained:
- requirements to independently provide publicly available information;
- the established method of confirming the absence of grounds specified in paragraphs 2, 3, 5, 6, 8 of the first and second Parts of Article 18 for all participants.
- definition of the "similarity" of the contract, not documented;
- unreasonable setting of requirements for the number of specialists in the participant's staff;
- other requirements for the organization of labor relations in the company of the participant – requirements for the work schedule, requirements to provide workbooks or contracts, and so on;
- requirements for the availability of specific equipment and requirements to provide documentary evidence of the availability of a list of equipment and the right to use the equipment.
Complaints related to the technical proposal
If the tender documentation contains the following requirements, the participant may challenge them:
- specific requirements are established for the characteristics of the object, which are satisfied only by the product of one particular manufacturer;
- there is no possibility to provide equivalent products;
- there are no specific requirements for the subject;
- it is impossible to involve subcontractors, although the Law does not prohibit this in this case;
- lack of specific requirements for the equivalent of the purchase item.
In addition, if the customer has chosen a winner, other participants can appeal. After that, the deadlines for concluding the contract are stopped (on the day of filing the complaint). They are extended from the next day after the decision of the competent authorities.
Challenging general requirements for tender documentation
They can be challenged in cases where the customer:
- established additional documentation requirements for the submission of a tender application that are not provided for by law or are unreasonable for other reasons, resulting in monopolization of procurement;
- rejects the proposal without substantial grounds determined by legislative acts;
- changed the tender documentation after the deadline;
- refused to comply with the decision of the AMCU;
- did not fix the requirements that must be provided as part of the tender offer, the documentation established by these appendices: UA-2019-04-16-000620-b, UA-2019-04-22-000637-a
Provision of the offer in accordance with the Resolution
Establishment of additional requirements for a bank guarantee in the tender documentation, except for the requirements in the Resolution of the NBU Board dated 15.12.2004 No. 639.
As well as the establishment in European auctions of the validity period of the security of the tender offer from the date of disclosure of proposals, which can be changed by the system, instead of setting such a period – from the deadline for submission of proposals (UA-2018-07-17-000470-a, UA-2019-06-10-000115-b).
Complaints about additional requirements to the draft agreement
If the customer has established additional requirements in the draft purchase agreement that are not provided for by Law, then such a decision may be appealed. For example, in case of establishing additional liability or payment by the consulting service provider, etc. (see UA-2019-08-08-000508-a)
Complaints about formal errors in documentation
Insignificant errors of a formal nature are allowed in the tender documentation, the admission of which does not lead to the rejection of the offer. Such minor errors include typos and technical errors that do not affect the content.
Other cases may be appealed:
- There is no description and example of formal errors;
- the mistakes have been made that are not insignificant, but are classified as such;
- the tender offer was rejected on the basis of the assumption of insignificant errors (for example, the absence of seals or signatures, dates, etc.). See Annex UA-2019-07-12-000395-c.
The Law On Public Procurement states that only technical errors that do not affect the content and typos are considered insignificant errors. These terms have no definitions, therefore, contradictions arise between the customer, the participants and the Antimonopoly Committee, which are resolved individually.
