Conditions and Peculiarities of Submission of Complaints in Ukraine. Typical Errors/Infringements Relating to Submission of Complaints Kyiv, April 2012 Olexander Shatkovsky EU Project “Harmonization of Competition and Public Procurement Systems in Ukraine with EU Standards”

Requirements to the complainant -- 1 Complainant status (eligibility) – a natural or a legal person turning to the review authority in order to protect its rights and legal interests in regard to a decision, act or omission on the part of the contracting authority which contradicts the public procurement law and results in an infringement upon the rights or legal interests of such person. Presumption of the status – does it need to be proved?

Requirements to the complainant -- 2 Submission requirements: Payment of a fee and submission of a payment evidence together with the complaint (a payment order with the following endorsement of a credit institution “Credited to the public budget revenues___ UAH (date)”. This endorsement must be certified with two signatures of the credit institution officials and its stamp with the date when the payment order was transacted). A copy of the complaint is to be provided to the contracting authority Deadline – 14 calendar days from the date when the grounds occurred (but not later than the bid submission deadline if tender documents are challenged)

Procedural grounds for not reviewing/rejecting a complaint -- 1 Non-compliance with Article 18, inter alia -- definite rejection – non-payment of the fee (failure to provide payment evidence), missed deadline and non- compliance of the complaint form and content with the requirements set out in Article18.1; -- rejection is less likely – failure to provide the CA with a copy of the complaint, failure to prove the status (eligibility) of the complainant (except for situations with parties which are apparently not related to the review) Withdrawal of a complaint by the complainant – at the AMCU discretion Evidence that the contract had been signed before the complaint was submitted

Procedural grounds for not reviewing/rejecting a complaint -- 2 The complaint concerns the same infringement in the same procurement and the same grounds which have already been reviewed by the RA and in regard to which the RA has already passed a final decision; CA has admitted and rectified, in accordance with the law, the infringements mentioned in the complaint and has provided a documentary evidence of this.

Requirements to the form and content of a complaint Complaints must be submitted in writing with a signature of the complainant (and the name of RA); A complaint must contain (preferably in the following order): -- name, place of residence (location) of the complainant, phone, fax, etc. no. and (if any); -- name, location and mailing address of the CA whose decisions, acts or omission are being complained against; -- grounds for the complaint, reference to infringements of the procurement procedure or decisions made, acts or omission of the CA, actual circumstances which can be used as evidence for this, date when these decisions, acts or omission became known to the complainant; -- requests of the complainant and their substantiation. Attached to the complaint must be documents (if any) which evidence the infringement of the procurement procedure or illegality of the decisions, act or omission on the part of the CA.

Template (example) of a complaint -- 1 AMCU – PP Review Authority Cc : Name of the CA Complainant – name, address, tel., Complaint regarding a procurement procedure Following Notice No. ____ published in the information bulletin “Journal of Public Procurement” No. ___ (___) dated _____ about an open tender for the purchase of goods «________», Company __________ expressed the intention to participate in the procurement and sent a request to provide it with the tender documents (TD), (letter dated ____ No. ___, see a copy attached). After a detailed analysis of the TD received _________ (date of receipt) (see a copy attached) we found discriminatory provisions which contradict the current public procurement legislation and the procurement procedure. If these infringements continue, this will violate our legal rights to participate in the tender according to its procedures set out in the law. The following TD provisions are considered as grounds for the complaint: 1) The equipment parameters defined in the technical requirements to the subject of the procurement (Appendix 2 of the TD), although there is a formal expression “or equivalent”, strictly limit the subject of the procurement by products of Company _______ in violation of Article and Article 22.3 of the Law of Ukraine “On Public Procurement” (PPL). Such parameters are used in the following technical requirements ____________.

Template (example) of a complaint )The qualification criteria (Appendix 1 of the TD) include a financial capability requirement for the bidders to have a charter capital or an average annual turnover in the last 3 years not less than 200% of the bid price 3) The qualification criteria (Appendix 1 of the TD) include an asset requirement for the bidders to own a fleet of vehicles for transporting the procured equipment

Template (example) of a complaint -- 3 Therefore, we request as follows: To suspend the procurement procedure in order to prevent the CA from violating its legality; To oblige the CA to change the TD in order to eliminate the discriminatory requirements and conditions, namely in Appendices 2 and 3 of the TD. Once the changes are made, to extend the bid submission deadline by not less than 10 working days. Please review this complaint and ensure that a decision is made according to our request and Article 18 of the Law. Company Manager ________Full Name signature, seal

Typical errors/infringements reviewed ) Most complaints concern the content of the TDs, namely: The information in the TD required by Article 22.2 of the Law is missing or vague; Technical requirements to the subject of procurement are incomplete, vague or discriminatory; Violation of Article of the Law as regards references to a specific trade mark or firm; Establishment of discriminatory requirements to bidders, in particular as regards the evidence of their qualification, as well as restrictive/groundless qualification requirements and requirements to provide evidence of the same (letters of authority from manufacturers, experience working with public budget organizations);

Typical errors/infringements reviewed -- 2 Contract term sheet or draft contract contradict other conditions and substantive provisions of the TD; Failure to split the procurement subject into lots. CAs quite often fail to split the procured item into lots in the TD and then accept several bids in violation of the procurement law and their own TDs. If a CA does not expressly indicate the possibility to bid for separate lots in the TD, the CA may accept and evaluate only the bids which concern the whole item, not its separate parts. CA provides replies which are different by substance when requested by bidders; makes conflicting changes in the TD; fails to disclose or to notify changes in the TD to all bidders; Failure to set requirements to the bid price format making it impossible to compare prices; Excessive tender security size

Typical errors/infringements reviewed ) Violations of the bid opening procedure, in particular: Information is not disclosed as required; Documents required in the TD are not checked for presence and correctness; Decisions to reject or to adjust the bids to the CA requirements are made during the bid opening procedure, arithmetical errors are discussed and corrected orally, etc. CA fails to provide a copy of the bid opening protocol upon request from bidders; 3) Acceptance of a bid which does not comply with the TD requirements and must be rejected, and vice versa – unlawful rejection of bids; 4) Missed publication and contract signing deadlines.

Thank you for attention!