Grounds, procedure and duration of appealing against results of the tender procurement
Conducting competitive bidding with violations is a phenomenon which becomes more frequent in modern realities. The winners are often the participants who are in some way connected with the customer, who in turn prescribes the conditions of the tender for them. For an entrepreneur, this question is extremely urgent, because profit depends directly on it. However, not everyone knows that the results of competitive bidding can be appealed. In this article, we will help you to figure out the following issues, which in turn should help to defend their legitimate interests:
- What tools for appeal are there in the Anti-Monopoly Committee of Ukraine?
- When exactly should the appeal procedure begin?
- What can you complain about?
According to the Act of Ukraine "On Public Procurement" (further - the Act), the Anti-Monopoly Committee (AMCU) is the appellate body of the tender committee decisions. Its task is to ensure healthy competition and avoid monopoly. The legislation provides for a list of instruments with the help of which the influence on unfair tenders can be carried out.
Announcement of procurement → presentation of offers → holding of an auction → publication of the winner → manifestation of the contract.
Terms of public procurement (when the Act applies):
- For goods and services - the cost is equal to or more than two hundred thousand UAH.
- For work - the cost is equal to or more than one and a half million UAH.
The procedure for conducting pre-threshold procurement is governed by Order №35 from 13.04.2016 State-owned Company «Vneshtorgizdat Ukrainy». All purchases are carried out in the electronic system.
Appeal at the stage of the procurement notices
What can be appealed: at this stage, you can dispute discriminatory requirements regarding the conditions of the tender (for example, the customer requests a certificate of no criminal record within 2 days, when in practice such certificates are only prepared from 3 days, as well as other similar cases).
Deadlines: you can appeal the documentation at the stage of the procurement notices not later than four days before the deadline for the submission of the applications. The complaint is considered within 15 days.
Consequences: the result is the suspension of the start of the auction, until the elimination of violations which are shown in the complaint.
Appeal after the publication of the winner
What can be appealed: both the decision itself and other actions and acts of omission, which could negatively affect the auction outcome, are disputed.
Deadlines: the law gives 10 days to appeal the results (during this period, the Customer has no right to sign an agreement with the winner).
Consequences: according to the results of the deliberation, the AMCU may oblige the customer to cancel fully or partially his decisions or provide the necessary documents and explanations.
If you were denied before the beginning of the procedure for determining the winner, such a decision of the tender committee must be reflected in the record of the meeting with the justification for refusal. Most frequently, such a refusal is motivated by non-execution of certain requirements, which were explicitly stated in the requirements of the tender documentation. The information that your proposal is rejected must be reflected within one day from the moment such a decision is made. The grounds on which the Customer can also refuse are listed in Article 17 of the Act.
Practice shows that the AMCU satisfies 60 per cent of the submitted applications for appeal. Refusals, strange as it may seem, are most often connected with the fact that appellants fill out an electronic form incorrectly.
An alternative to appealing through the AMCU is to address to the Customer with a request to eliminate the violations or clarify certain provisions of the tender documentation.
- Complaints are lodged as an electronic document via an electronic procurement system.
- It is necessary to meet all the requirements for drafting a complaint, which are defined in Article 18 of the Act, otherwise, the AMCU will leave such a complaint unanswered.
- In accordance with Resolution №291 of the Cabinet of Ministers of Ukraine for submitting a complaint, there is the following payment: five thousand UAH for appealing the procedure of purchasing goods or services and fifteen thousand UAH for appealing the procedure for purchasing work.
- Before you submit a complaint, you must check carefully whether you, as an auction participant, have complied with all the requirements stated by the Customer at the stage of the announcement of procurement, because the funds paid for submitting the complaint won’t be returned.
So, today the AMCU is one of the most effective bodies for appealing against the procurement procedure. Although this procedure seems simple at first glance, we still advise you to turn to professionals in order to have a better chance of getting a positive result.