Appeal to the Antimonopoly Committee

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The open system of public procurement (tenders) on the Prozorro portal has been operating in Ukraine since 2016, the task of which is to provide economic entities with the opportunity to compete freely for government orders. Thus, at the same time, healthy conditions for competition are created, and the corruption component is minimized.

The "Prozorro" system provides the possibility of public access to all the key details of a particular tender. Anyone can get acquainted with the set of goods or services that the state plans to purchase, the price of the transaction, the applicants for the conclusion of the contract, as well as the winner of the purchase itself.

The customers are various authorities, enterprises of municipal and state forms of ownership. In other words, all purchases for which it is planned to pay money from the state or local budget go through the bidding procedure.

The procedure of public procurement is regulated by the Law of Ukraine On Public Procurement. In case of violation of the norms of the current legislation, participants have the right to protect their rights by contacting the Permanent Administrative Board of the Antimonopoly Committee of Ukraine. This body is intended directly for the consideration of such disputes.

The complaint is filed online. Consideration of the dispute can be implemented both with the personal participation of the parties, and with the help of interactive communication tools.

When can I appeal the tender?

The Prozorro platform is an analog of the exchange. Customers (government agencies) place their purchases with a budget on the site, and participants offer their proposals. After the end of the auction, all offers are opened, and all the details of the auction and the transaction remain freely available in the system.

Depending on the expected cost, the purchase can be carried out in the form of pre-threshold bidding, bidding in a simplified form or in the form of open bidding.

When drawing up complaints, it has to be considered that these procedures have certain differences.

Let us highlight the most common violations in this area:

• Inclusion of conditions that put one of the participants in a privileged position;
• Errors in the specifications;
• Illegal rejection of the tender offer;
• Consideration and "acceptance" of proposals that do not comply with the rules and requirements of the tender documentation or announcement;
• Illegal modification of the terms of the tender documentation;
• Delaying deadlines, refusing to conclude a contract with the winner.

Preparing a complaint

If there is a violation of the norms of the current legislation on the part of the customer of public procurement, the participant has the right to protect his interests in such ways:

• Contacting the customer with an official claim;
• Filing a complaint with the authorized body of the AMCU;
• Filing a lawsuit in court.

A complaint about a violation of legislation in the field of public procurement is filed in electronic form directly through the Prozorro website. For filing a complaint, a fee is charged from the participant, which will be refunded only if the complaint is satisfied, a victory.

The requirements for the complaint, as well as the procedure for its consideration, are specified in Article 18 of the Law of Ukraine On Public Procurement. After the complaint is accepted, the procurement procedure is suspended until the decision is made by the AMCU.

You can appeal against violations in court in such cases:

• The AMCU has made a decision, but the applicant does not agree with it — the claim is filed with the District Administrative Court within 30 days from the date of the decision of the Antimonopoly Committee;
• If violations are detected after the conclusion of the contract — the claim is filed with the local commercial courts.

The cost and terms of appealing the procurement procedure to the AMCU

If the participant believes that the terms of the tender or the actions of the customer violate your rights, he can file a complaint electronically:

• Complaints concerning the tender documentation may be submitted to the appeal body from the moment of publication of the announcement of the competitive procurement procedure, but not later than four days before the deadline for submitting tender proposals established for making changes to the tender documentation;
• Complaints concerning the taken decisions, actions or omissions of the customer that occurred before the expiration of the deadline set for submitting tender proposals may be filed within 10 days from the day when the subject of the appeal learned or should have learned about the violation of his rights as a result of the decision, action or omission of the customer, but not later than four days before the deadline for submitting tender proposals set at the time of making such a decision, action or omission of the customer;
• Complaints concerning the taken decisions, actions or omissions of the customer that occurred after the consideration of tender proposals, the procedure for which is provided for in part twelve of Article 29 of this Law, are filed within five days from the date of publication in the electronic procurement system of the protocol of consideration of tender proposals, if the announcement of the competitive procurement procedure is published in accordance with part three of Article 10 of this Law.

The Permanent Administrative Board of the Antimonopoly Committee of Ukraine for the Consideration of Complaints about Violations of Legislation in the field of Public Procurement considers complaints and publishes its decisions in the electronic procurement system PROZORRO.

The term for consideration of the complaint by the appeal body is 10 working days from the date of acceptance of the complaint for consideration, which can be extended by the appeal body up to 20 working days. Experts may be involved in the consideration of the dispute, but the presence of the parties is not mandatory (although it is desirable). After the decision is made, it is published in the electronic procurement system "Prozorro" and must be executed within 30 days, or appealed to the District Administrative Court of Kyiv.

As for the cost of filing a complaint, then for the complaint:

• 0.3% of the cost of the purchase item (or lot), but not less than 2 thousand and not more than 85 thousand hryvnia - for tender documentation;

• 0.6 % of the cost of the purchase item or lot, but not less than 3 thousand and not more than 170 thousand hryvnias when appealing against decisions, actions or inaction of the customer that occurred:
  • after evaluating the tender proposals;
  • after consideration of tender proposals (open bidding with publication in English – "European tender");
  • after the publication in the electronic procurement system of the notification of the intention to conclude a procurement contract.

Assistance of lawyers on tenders

Participation in public procurement is a great chance to get a profitable order with guaranteed payment. The Prozorro platform allows enterprises and entrepreneurs to compete for the right to receive a state order, but if certain violations were revealed during the auction and a conflict arose, you can and should use the right to appeal the procurement procedure and protect your interests in the Antimonopoly Committee of Ukraine (the most effective way to protect your rights and interests compared to filing a lawsuit in court)

To avoid mistakes and unnecessary costs, it is best to contact a professional lawyer for tenders, and it is desirable to do this even at the stage of preparing and submitting an offer. The earlier the lawyer takes up work, the less risk that the situation may come to a dead end. However, a competent lawyer will be able to defend the interests of the client at any stage, even if it is necessary to appeal violations in different instances. The lawyer will provide not only competent preparation of the complaint, but will also take a direct part in resolving the conflict situation.