The electronic system for public procurement, intended to simplify and streamline these procedures, in practice continues to be an effective mechanism for encouraging anti-competitive actions in a “new format.” This is because it is based on assumptions and presumptions of lawful behavior by participants in the procurement process, which do not align with the realities of the economic life in our country.
For instance, under Article 25 of the Law of Ukraine “On Public Procurement,” the contracting authority has the right to require all participants to include bid security as part of their tender proposals. The purpose of such security is to provide the contracting authority with adequate protection against “dishonest” participants. However, if the contracting authority exercises this right in a specific tender, it becomes a mandatory requirement for all participants.
Thus, the Law establishes the voluntary nature of this instrument, which is often used by contracting authorities as a tool to restrict the potential pool of participants, particularly in sectors where there is a lack of working capital (e.g., research and development services, light industry, etc.). Abuses by contracting authorities are also observed in the establishment of qualification criteria for participants, in the provision of information on the required technical, qualitative, and quantitative characteristics of the procurement object, and in many other aspects. Participants, in turn, also “skillfully” exploit legislative gaps in this area, distorting the outcomes of procurement procedures or even blocking their implementation altogether.
The attorneys at Winnerlex Law Firm will provide you with high-quality and professional assistance at any stage of the tender process to ensure a convincing victory, as well as reliable and effective legal support afterward.
The attorneys at WinnerLex Law Firm, in order to protect the rights of auction participants, provide the following services:
- Written and/or oral consultation regarding the conduct and/or participation in tender procurement;
- Analysis of the tender documentation of the contracting authority for compliance with legislation and the presence of discriminatory restrictions;
- Drafting and preparation of requests and demands addressed to the contracting authority of the tender procedure;
- Preparation of a tender proposal;
- Contesting the procurement procedure at any level and stage;
- Legal support during the contract conclusion stage following the completion of the procurement process.
Practice experience: 19 years
Specialization: litigation support, tax, customs and antitrust practices, agricultural law, IT and M&A
Practice experience: 21 years Specialization: support of economic, civil, labor and administrative disputes, energy
Practice experience: 11 years Specialization: tax, customs and corporate disputes, support of inspections, contractual activities
Practice experience: 6 years
Specialisation: business and civil law, tax and customs practice, corporate law, registration and reorganisation of business
Practice experience: 11 years Specialization: support of economic, civil, labor and administrative disputes, inspections
Before starting the preparation of your tender proposal, thoroughly analyze the contracting authority’s tender documentation:
- Is the subject of the procurement correctly defined?
- Has all the necessary information been provided for forming the proposal, including technical and qualitative specifications of the procurement item?
- Are there any conditions that limit the pool of potential participants?
- Does the expected procurement item value correspond to the actual (market) value, considering all associated costs outlined in the draft contract, which will be signed between the contracting authority and the winner of the procedure?
Use the free legislative mechanism to make requests to the contracting authority to address any deficiencies you find in the tender documentation.
Appeal unfair conditions in the tender documentation to the AMCU if the contracting authority does not satisfy your request.
When submitting a complaint, carefully review any existing decisions from the appeal body regarding the specific procurement procedure, as the complaint will be disregarded if it is determined that: the appellant is submitting a complaint about the same violation, in the same procurement procedure, and for the same reasons that have already been considered by the appeal body, and for which a relevant decision has been made by the appeal body.
Actively defend your result in the procedure at any stage, however, keep in mind that complaints regarding concluded procurement contracts are only considered in court.
Please note that the Ministry of Economic Development and Trade of Ukraine approved the Sample Tender Documentation (Order No. 680 dated 13.04.2016). The Sample Tender Documentation is not mandatory for use by the procuring entities, but it can be used as a basis to form their own tender documentation, taking into account the specifics of their procurement and the principles of procurement under Article 3 of the Law of Ukraine “On Public Procurement.”
The minimum step for such procurements is not regulated by the Law of Ukraine “On Public Procurement.”
According to the Order of the Ministry of Economic Development and Trade of Ukraine No. 473 dated 18.03.2016, the information and telecommunication system “Prozorro” is designated as the web portal of the Authorized Body.
Yes, it is possible.
According to Article 18 of the Law of Ukraine “On Public Procurement,” the Antimonopoly Committee of Ukraine, as an appeals body, establishes a permanent administrative panel(s) to ensure impartial and effective protection of the rights and legitimate interests of individuals involved in procurement procedures. Decisions of the permanent administrative panel(s) are made on behalf of the Antimonopoly Committee of Ukraine.
The right to appeal, as provided in Article 18 of the Law of Ukraine “On Public Procurement,” does not restrict the right of the appealing party to approach the court without prior appeal to the appeals body.
