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Examples of situations in which the AMCU requested a certificate from the servicing bank

Sometimes the customers of tenders set conditions according to which the participants in tenders are required to provide a certificate from the bank where a particular company is served. The certificate must contain information about the absence of debt to the bank on lending issues.

We will analyse individual issues of appealing certain points in the tender. The Administrative Board of the Antimonopoly Committee of Ukraine accepts such complaints about various types of violations.

Most of the problems are that the tender customers do not indicate the relevant requirements in the tender documentation. That is why many tenders are often cancelled on appeal.

Customers sometimes set certain requirements for participants in the tender documentation, for example, to provide a certificate from a particular bank about the absence of debt on loans and borrowings. There may also be other requirements that cannot always be met, and this can sometimes put one of the Participants in a privileged position before the others

We will focus on specific issues that may arise when appealing to the Permanent Administrative Board of the AMCU in terms of problems in the field of state tenders and specific decisions of the customers of these tenders to reject the incoming proposals of participants, or to determine specific winners based on the results of the competition with the provision of certificates.

Questions arise, most likely, because customers, setting the above-mentioned requirement, often do not specify a specific bank in the tender documentation.

Let us look at what conclusions a specialized service comes to. The bank has provided a guarantee – so you need a certificate. Consider the decision dated 21.04.2021 No. 8709-p.

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The essence of the Applicants' position is that one of the participants provided an electronic bank guarantee drawn up by a particular bank, but did not provide a certificate of the presence or absence of debt to this institution that provided the guarantee.

The essence of the Customer's position is that a certain point of the documentation requires a certificate issued no earlier than a month ago in relation to the date of disclosure of trade offers, and it must be issued by the bank that serves the tender participants. The certificate must be about the presence or absence of debt.

The essence of the reasoning part of the court's decision was that the documentation does not contain separate requirements for the need to provide certificates from all servicing banks.

The essence of the applicant's position is that as part of the tender offer of a particular participant, certificates from a certain bank were provided. As part of the tender offer of this participant, existing contracts are provided, in which an account with another bank is specified. The certificate on the specified bank is not included in the tender offer of this participant.

The essence of the reasoning part of the decision: the customer did not prove and did not document that the specified other bank is serving at the time of submission of the Offer.

Let us consider another situation based on the decision dated 21.04.2021 No. 8649-p. The essence of the Applicants ' position is that in open sources, namely in the system Prozorro, there are documents confirming that the company has accounts in other servicing banks. The complainant adds that the participant submitted a certificate of opening a current account and a certificate of the absence of overdue loans in a particular bank.

Examples of situations in which the AMCU requested a certificate from the servicing bank

The essence of the reasoning part of the decision of the Appeal Body is that the tender offer actually contains a certificate of opening an account with a certain bank and a certificate of absence of debt. But at the same time, the applicant did not prove that this particular bank is the servicing bank. The fact that a company has an open bank account does not mean that this bank is the main one for it. Perhaps there are accounts in other banks, to which the company may already have a certain debt.

There are also questions about the content of certificates from servicing banks. The nuance lies in the fact that banks often draw up certificates in a certain form, which does not always meet the requirements for the tender documentation. At the same time, the requirements for documentation can be quite individual.

As an example, consider the decision of the Appeal Body dated 25.09.2020 No. 18105. The essence of the Customer's position is that the provision of information about the absence of the Participant's overdue debt on loans does not exclude the presence of the Participant's debt under loan agreements, and therefore the certificate in the bank form will not be sufficient to meet the tender requirements.

The essence of the reasoning part of the decision of the Appeal Body is that the Proposal contains a certificate, which states in particular: The Bank informs that dated May 13, 2020, this organization has no outstanding loans.

Thus, it can be argued that many cases of appeals to the Permanent Administrative Board of the Antimonopoly Committee of Ukraine are connected precisely with the insufficiently correct and complete content of bank certificates. Situations are often repeated, since banks do not have a single format for preparing certificates, and the requirements for tender documentation often contain completely individual conditions, depending on the Customer. The problem can be solved by careful preparation, or by creating consolidated rules.

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