Public Procurement Appeals
in Ukraine
Complaints and Appeals Authority
Anti-Monopoly Committee of Ukraine
(according to the Law of Ukraine «On Public Procuremen...
The Complaints Review Authority
• Support to the Board is provided by AMCU
Department for Complaints and Appeals in Public...
Complainer and reasons for
complaints
• The complainer is a physical or legal person that applies to the
Complaints Review...
Types of complaints and
timeframe for filing them
• Complaints about bidding documents shall be filed after the
request fo...
Complaint requirements
• Formal requirements are minimal.
• Complaints are brought to the Complaints Authority
for a charg...
Preliminary stage
Within 3 days after a complaint has been registered
the Complaints Authority decides whether to
• accept...
Suspension of proceedings
• It is a right and not a duty (no automatic force)
• It blocks actions of the contracting autho...
Decisions after complaint review
• A decision to grant a complaint fully or partially, or to
dismiss a complaint shall be ...
Measures
The Complaints Review Authority is entitled to:
• oblige the contracting authority to revoke its decisions fully ...
Entry into force of the decisions
and appeals
• Decisions of the Complaints Review Authority shall take force on
the day t...
Enforcement guarantees
• Payments are blocked at the Treasury (if the decision stops
the procurement)
• Provisions to null...
Typical infringements related to
documents
• non-transparent and unclear technical and qualification requirements for
tend...
Typical procedural infringements
• Breach of procedures for information publication;
• Wrongful rejection of bids;
• Wrong...
THANK YOU FOR
ATTENTION!
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16 Public Procurement Appeals in Ukraine_English

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ENI East Regional Conference Public Procurement Appeals in Ukraine English

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16 Public Procurement Appeals in Ukraine_English

  1. 1. Public Procurement Appeals in Ukraine
  2. 2. 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.
  3. 3. 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.
  4. 4. 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
  5. 5. 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)
  6. 6. 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.
  7. 7. 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)
  8. 8. 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.
  9. 9. 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
  10. 10. 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
  11. 11. 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.
  12. 12. 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
  13. 13. 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.).
  14. 14. 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.
  15. 15. THANK YOU FOR ATTENTION!

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