Let’s win the tenders correctly!
Since April 19, a number of amendments have been made to the Law on Public Procurement, which was aimed at improving the conditions for business participation in public procurement. At previous UAFM marathon webinars, we looked in detail at these innovations, developed a strategy, and learned about the real cases of participation in tenders. All materials are available on our website in previous news. At the end of the marathon, we have prepared a webinar for you, which should help you how to win public procurement, properly compiling technical documentation and defending your rights.
The speaker of the webinar was:
Oleksandr Nikitenkov – Partner of Pravoe Delo Law Firm, co-founder of Clarity App service, public procurement expert
Preparation of the winning tender offer
“Despite the fact that Prozorro is moving in the direction of simplifying participation in procurement, the completion of tender documents should be given much attention,” – said Mr Alexander. The expert recommended entrusting this activity to those who have the appropriate competencies, namely the ability to read and write carefully. He noted that it is important to pay attention to all the information provided in the tender documents. He also noted that the Antimonopoly Committee began to pay more attention to formal errors and support participants in such cases, but recommended not to “bring” to it. The speaker predicted an increase in caution in the evaluation and attentiveness of the analysis of tender proposals by customers, due to increased penalties for illegal decisions. He stressed the importance of obtaining and adding an electronic signature to the documentation, instead of a seal, which is considered a mistake after April 19.
From the experience of customer issues, Mr Alexander singled out the most common mistakes that the audience drew attention to:
- The price is only one element of evaluation of the tender offer, besides there is an element of consideration of the tender offer on its conformity to requirements of the law and the tender documentation. Therefore, it is necessary to understand and pay attention to both parameters.
- “Do not think that the customer’s requirements are his personal whims. The rules are the same for everyone,” the speaker emphasized and called to understand the need to present the relevant complete documentation within the requirements of the tender offer.
- Mr Oleksandr also recommended that you always check not only your own, but also documents provided by other organizations and institutions, errors in which can also serve as a basis for disqualification.
- It is important to follow the changes in the tender offer.
- “If a tender is” registered “for someone, you need to fight for your rights,” the expert-recommended participating in such tenders, challenging discriminatory requirements and gaining benefits.
- “You don’t have to negotiate with anyone.” Any honest business can appeal against illegal decisions, appeal to the Antimonopoly Committee, so the agreements will not work in their favour.
- You need to analyze the market and not count on excess profits. Alexander recommended reducing the expected cost by 11-12%
- Determine the lowest price in advance and remember that a group of competitors can take part in the game, and take this into account at the auction.
Alexander advised to communicate with the customer through the site, provide advice and require changes to the tender offer, if errors or shortcomings were noticed, based on the practice of the Antimonopoly Committee.
In addition to the requirements and influence on the terms of the tender documents, you can influence the customer’s decision
To do this, you need to ask the customer to provide additional information on the reason for non-compliance of his proposal with the tender documents, or to provide information on the bid of the winner, including the indication of its advantages over the bid.
If the customer refuses to satisfy your requirements, you need to file a complaint with the Antimonopoly Committee.
RULES FOR SUBMITTING COMPLAINTS TO THE AMK
Terms
- Customer’s decision to disqualify your offer
- Customer’s decision to determine the winner
- Cancellation of the procurement procedure.
Complaints about the conditions are filed 4 days before the deadline
The appeal against the decision: open bidding – 10 calendar days from the date of violation (ie disqualification or determination of the winner).
European procedure – 5 calendar days after the decision on admission or non-admission to the auction
The term for consideration of the complaint is from 10 to 20 working days
The speaker emphasized that complaints should be filed only through the electronic platform.
The appeal fee is calculated as a percentage of the expected value of the tender offer. It is paid through the Prozorro system and is returned in case of winning.
Oleksandr noted that the new amendments to the Law on Procurement made it impossible to cancel the bidding after the bidder had filed a complaint and obliged the customer to respond to the AMCU’s inquiries.
The speaker also provided information on the activities of the Antimonopoly Committee of Ukraine in the framework of resolving complaints, deadlines and penalties for non-compliance with the decision of the AMCU.
The next block of the webinar was devoted to a detailed consideration of the requirements and the possibilities of appealing them
The requirement to provide experience in performing similar contracts for a certain amount
Appeal on the grounds that the amount of the contract does not indicate experience. Experience can be evidenced by the number of goods delivered or the volume of services provided or work performed.
https://prozorro.gov.ua/tender/UA-2017-04-19-000818-c
The requirement to have own or leased machines, mechanisms, transport, equipment (for example, in the case of delivery of goods or to perform work)
First, always pay attention to the fact that own or leased is not the same as attracting material and technical base under service contracts.
Secondly, challenge such conditions and prove, including for the AMCU, that you are able to fulfil the contract based on the results of the procurement with MTB on the basis of service contracts.
https://prozorro.gov.ua/tender/UA-2018-10-22-002512-b (p. 8)
Requiring an adequate number of employees. Most often, an artificial increase in the required number
The appeal is based on the fact that it is necessary to prove the experience of performing similar contracts with fewer employees and the availability of all necessary permits for the participant.
https://prozorro.gov.ua/tender/UA-2018-10-22-002512-b (p.10)
The requirement that the employee has the appropriate qualifications only in the staff of the enterprise
The appeal is based on the need to prove the existence of the employees involved in such qualifications and to confirm the performance of similar agreements by the employees involved.
https://prozorro.gov.ua/tender/UA-2018-10-22-002512-b (p.9)
Requirements that are reasonable and must be met
- Provision of acts or expense invoices to the contract
- Availability of documents that are required to carry out activities on the subject of procurement in accordance with regulations
- Availability of own or involved material and technical base, which is necessary for the execution of the procurement contract
Requirements for a specific manufacturer
Technical characteristics to which your product does not correspond
An appeal is based on a simple rule. At least two manufacturers must meet all technical specifications. If this is not the case, you can force the customer to make changes to the specifications
https://prozorro.gov.ua/tender/UA-2018-07-26-001069-b
Providing a unique document that confirms something
Availability of certificates that only one manufacturer has
Availability of authorization letters from the manufacturer
Appeals should be based on evidence of the impossibility of obtaining such documents and on the availability of other similar documents that confirm the quality characteristics.
https://prozorro.gov.ua/tender/UA-2018-12-06-001025-b
Alexander recommended starting the practice of participation in public procurement with simplified procurement, where the requirements for technical documentation are not complicated. He also answered numerous questions from the audience, kindly provided his contacts and offered assistance and support in the preparation of tender proposals and the Antimonopoly Committee.
CONTACTS:
Alexander Nikitenkov
tel: +380676433939
on@easytender.pro
Mykola Smirnov
tel: +380675338585
ms@easytender.pro
AMCU practice amcu.clarityapp.pro
