Public Procurement Appeals

in Ukraine

Complaints and Appeals Authority Anti-Monopoly Committee of Ukraine

(according to the Law of Ukraine «On Public Procurement»)

• The functions of complaints review for public procurement were vested with the Anti-Monopoly Committee of Ukraine when the Law “On Public Procurement” took effect on 30.06.2010;

• The Committee has set up a Permanent Administrative Board for Review of Complaints on Public Procurement Infringements (hereinafter the Board);

• The Board consists of three Government Commissioners;

• The Chairman of the Board must have a degree in law;

• The Board is regulated by the law of Ukraine “On Anti-Monopoly Committee of Ukraine” unless otherwise established by the Law of Ukraine “On Public Procurement”;

• The Board’s decisions are made on behalf of AMCU.

The Complaints Review Authority

• Support to the Board is provided by AMCU Department for Complaints and Appeals in Public Procurement.

• The Department has four divisions:

• Complaints Review;

• Methodological and Legal Support for Complaints Review;

• Preliminary Complaints Analysis and Paperflow .

• Investigation of Certain Types of Concerted Actions.

The Department staff is 23 persons.

Complainer and reasons for

complaints

• The complainer is a physical or legal person that applies to the

Complaints Review Authority for protection of its rights and legitimate

interests because of the contracting authority’s decisions, actions or

inactions that infringe public procurement law and thus violate the

person’s rights or legitimate interests

• The Law allows to appeal any decisions, actions or omission thereof by

the contracting authority that infringe public procurement law and thus

violate the applicant’s rights or legitimate interests

NB: a purchase contract or awarding of damages may only be appealed to the court

Types of complaints and

timeframe for filing them • Complaints about bidding documents shall be filed after the

request for proposals has been published but no later than the deadline for submitting the bids

• Complaints about infringements of the purchasing procedure by the contracting authority shall be submitted no later than 14 days after the complainer learns that its rights or legitimate interests have been violated but before the purchase contract has been awarded

NB: after a contract has been awarded it can only be appealed to the court

The standstill period secures the right of complaint during 14 days after the notice of acceptance has been published (5 days for certain procedures)

Complaint requirements

• Formal requirements are minimal.

• Complaints are brought to the Complaints Authority

for a charge the amount of which is established by

the Cabinet of Ministers Resolution № 773 of

28.07.2010; the charge is paid into a special fund of

the State Budget of Ukraine.

• The charge equals UAH 5,000 ( = $500) for

complaints about public procurement of goods or

services and UAH 15,000 ( $1500) for works.

Preliminary stage

Within 3 days after a complaint has been registered the Complaints Authority decides whether to

• accept the complaint, fix the date for the complaint review, suspend the procedure (if necessary), request submission of documents and information, and engage experts (if necessary)

• dismiss the complaint on formal grounds

NB: a contract cannot be signed while the complaint is reviewed, and any contract signed during this period shall be considered null and void (without a judicial ruling)

Suspension of proceedings

• It is a right and not a duty (no automatic force)

• It blocks actions of the contracting authority (except to remove infringements),

publication of the procurement information complained of, and payments at the

treasury

• The Board would usually decide to suspend the procedure while it

reviews a complaint if the complaint is about:

• - tender documents (qualification documents, request for bids);

• - actions or inactions of the contracting authority, but before the

deadline for submissions of the bids;

• - the first stage of the two-stage proceedings/ preliminary

qualification.

Decisions after complaint review

• A decision to grant a complaint fully or partially, or to dismiss a complaint shall be made within 30 working days after the complaint has been registered at the Complaints Authority.

The decision shall contain:

conclusion about the fact of infringement of public procurement law or absence thereof;

justification;

measures to remove infringements and protect the rights and/or legitimate interests of the complainer

Measures

The Complaints Review Authority is entitled to:

• oblige the contracting authority to revoke its decisions fully or

partially;

• oblige the contracting authority to present the required documents;

• oblige the contracting authority to remove заказчика any

discrimination;

• oblige the contracting authority to cancel the procurement procedure

if the infringements cannot be corrected

• The list of the measures is not exhaustive (other remedies may be used

to provide effective protection of the complainer’s rights and

interests).

The complaint review documents may be shared with supervisory

institutions and law enforcement agencies

Entry into force of the decisions

and appeals • Decisions of the Complaints Review Authority shall take force on

the day they are made and are binding for the contracting authorities

and concerned persons.

• The Complaints Review Authority shall send, within three days,

certified copies of the decisions to the complainer, contracting

authority, State Treasury of Ukraine, and editor of the official public

procurement publication.

• The decisions shall be published by the official public procurement

publication and web portal of the Anti-Monopoly Committee of

Ukraine.

• A decision may be appealed to an administrative court within a

month after the complainer has learnt about it.

Enforcement guarantees

• Payments are blocked at the Treasury (if the decision stops the procurement)

• Provisions to nullify a contract signed while the complaint is reviewed or in the standstill period

• Administrative liability of the tender committee Chairman and members (indirect)

• The law does not provide a judicial-like mechanism for enforcement of decisions of the Complaints Review Authority

Typical infringements related to

documents

• non-transparent and unclear technical and qualification requirements for

tender documents

• artificial expansion of the procured items ( unjustified consolidation of

goods or services in a single lot or procurement item; unclear and broad

description of the procurement items)

• artificial restriction of the procurement items ( excessively detailed

elaboration of the items);

• other mistakes committed while drawing tender documents (inconsistence

of addenda to tender documents with key requirements thereto, unjustified

reduction of timespan for submission of bids, etc.).

Typical procedural infringements

• Breach of procedures for information publication;

• Wrongful rejection of bids;

• Wrongful award of contract;

• Acceptance of bidders whose bids do not comply with

tender requirements or who do not meet qualification

requirements;

• Conclusion of contracts where timeframe is breached,

including in the process of complaint review.

THANK YOU FOR

ATTENTION!