Tender appeals

The tender appeal procedure is designed to protect the rights and interests of suppliers, identify and eliminate violations during public procurements resulting from unlawful actions or inaction of the procuring entity. The transparency of bidding in Ukraine is ensured by the electronic system “Prozorro”, which guarantees equal conditions for all tender participants.

How to appeal a procurement: filing a complaint

If you have reasons to disagree with the decision of the tender committee and wish to appeal the procurement, then according to Article 18 of the Law of Ukraine “On Public Procurements” you may file a complaint with the standing administrative collegium at the Antimonopoly Committee of Ukraine.

The law provides for an electronic option to file complaints through the “Prozorro” procurement system. Complaints submitted on paper are not considered by the committee. An application prepared in accordance with the norms is entered into the general register and published on the official website.

For the complaint to be considered, it must be properly drafted and contain the following information:

• the name of the organization that announced the tender – the procuring entity;
• information about the applicant: full name of the individual, company name, place of registration, details;
• grounds for filing the complaint: violations of specific articles of the legislation, interests of business entities;
• the essence of the complaint;
• the applicant’s requests to reconsider the results or the sequence of the tender procedure and to restore fairness.

It is advisable to attach copies of documents to the application that confirm the grounds for the complaint.

Cost of appealing the results and terms of a tender

For filing a complaint appealing the results and terms of a tender, you must pay a fee in accordance with the Resolution of the Cabinet of Ministers of Ukraine “On establishing the amount of the fee for filing a complaint” No. 291 dated March 23, 2016:

• 5,000 UAH – if the procurement is for goods;
• 15,000 UAH – if the tender concerns works.

Legal entities and individuals who are actual or potential participants in the bidding have the right to file a complaint regarding the procurement procedure. With regard to the results of the tender – only participants. Information provided in the complaint is not confidential and is subject to public disclosure.

Deadline for filing a complaint

Depending on the duration of the tender procedure, it is allowed to file a complaint:

• Regarding violation of the tender conditions – no later than 4 days before the deadline for submitting tender proposals.
• If the violation concerns the evaluation of participants’ proposals, after reviewing the submitted applications for participation – within 10 days from the date of publication on the website of the procurer’s intention to conclude a contract, until the contract is signed.
• Regarding the compliance of tender participants with qualification criteria – up to 5 days from the date of publication of the decision.
• After the deadline for submitting proposals has passed – a complaint can only be filed concerning changes made by the procurer to the tender documentation.

If the filing deadline is missed, the complaint is not automatically accepted by the system.

After considering the complaint, the committee decides whether there are violations in the public procurement procedure. If the fact of infringement of the applicant’s interests is confirmed, the commission may fully or partially annul the tender results.

The Antimonopoly Committee’s verdict can be appealed in court within 30 days from the date of publication of the response to the complaint in the procurement system.

Main violations during public procurements:

• absence of an annual procurement plan;
• splitting the subject of the tender to avoid the public procurement procedure;
• initial formation of criteria and conditions for participation tailored to a specific contractor;
• vague qualification criteria for selecting procurement participants;
• disqualification of participants due to insignificant errors;
• making adjustments to the contract price after its conclusion;
• consideration of participation applications that do not meet the stated requirements.

Filing a complaint challenging public procurement automatically suspends the tender and blocks the actions of the procurer. Until a response to the complaint is issued, it is prohibited to conclude contracts and carry out any operations related to the public procurement object.

Professional support from a law firm

Tender participants and third parties can freely review competitors’ proposals. Any person, after studying a participant’s proposal, can report a violation by that participant of the bidding conditions.

The Antimonopoly Committee has the right to leave a complaint about a violation without response due to non-compliance with the complaint filing procedure:

• missed deadlines for filing complaints;
• incorrectly drafted application;
• absence of a receipt for payment of the fee.

To effectively appeal tender results, you should seek help from professionals. The law firm “Nakaz” offers a full range of services for appealing tenders: from checking compliance with bidding procedures and identifying violations to drafting and filing the complaint.