The tender has become more convenient to challenge the illegal requirements of customers
We already inform that a service has been launched in Ukraine for searching, structuring and monitoring the practice of the administrative board of the Antimonopoly Committee for the consideration of tender complaints. The service was created in collaboration with the Clarity Project, the ProZorro database and public procurement analytics system and the Right Cause law firm.
We asked Николай Смирнов (Mykola Smyrnov), one of the best experts in the field of public procurement, one of the founders and ideologists of Klarito APP (Decision Finding System of the Antimonopoly Committee of Ukraine for Procurement) to tell in more detail the furniture makers who are participating in the tender procurement or are preparing for it, what useful service can be introduced for them and in what cases it is advisable to use it.
– It is no secret that many participants of Ukrainian state tenders are hindered by the process of selling their goods and services unmotivated and illegal requirements, which are often made by customers. Therefore, business is looking for ways to protect its interests and violated rights.
The current law of Ukraine “On public procurement” provides that a participant may appeal against illegal decisions of other bidders by appeal to the Antimonopoly Committee of Ukraine. An appeal to the Antimonopoly Committee of Ukraine is a quick and effective way to protect the rights of a business: the term for considering a complaint is only 15 working days, and the fact of filing a complaint automatically stops the course of the tender. But you need to know that this service of the Antimonopoly Committee is not free: for filing a complaint, the company must pay a state fee of 5,000 UAH. (Purchase of goods / services) or 15 000 UAH. (Purchase of works). These funds are not refundable even if the complaint is satisfied.
Last year, the Antimonopoly Committee of Ukraine received more than 7,000 tender complaints, and this year they already received eight thousand. You should also know that the AMCU usually adheres to its own practice and in the same circumstances makes the same decisions. This is precisely what is important, because a company that intends to file a complaint can familiarize itself with the previous decisions of the committee, find out if there were similar cases, precedents, and understand whether it has a chance to get a decision in its favor, is not worth it to hope, and then spend money on paying state fees and legal services.
Now all AMCU decisions are publicly available on the Prozzoro portal, but they are not systematized and not indexed, and therefore it is necessary to know the identifier of a particular tender in order to get acquainted with a particular AMCU solution.
The service https://amcu.clarityapp.pro allows you to perform a full-text search for AMCU solutions regarding tender purchases, find the necessary information using the necessary filters. Its cancellation of such functionality of trading platforms is that it allows you to search for precedents precisely in the text (the closest analogues are Google, the court registry). Also, the service will be useful for preparing proposals and writing requirements. After all, a tender procurement participant, before resorting to appealing against the unlawful actions of the other party, may try to explain to the customer by referring to the case-law of the administrative board of the Antimonopoly Committee of Ukraine in its appeal, which can help resolve a conflict situation without contacting the Antimonopoly Committee of Ukraine.
The service in question will be useful for a business that participates in supra-threshold public (state) procurements in Ukraine. As for foreign counterparts, I note that different countries have different appeal bodies. Where, by the court of appeal, such decisions are published in the relevant court registers. However, all countries that have ratified the GPA should publish the decisions of the appeal bodies in the public domain, but, as in Ukraine, they may not be systematized.
The column “Expert Opinion” was founded as part of a grant project with the support of the Swiss Cooperation Bureau in Ukraine, the name of the project: “Improving the level of cooperation and trust in joint participation in international and national public procurements” – TENDER TOGETHER, which is implemented by the Ukrainian Association of Furniture Manufacturers in partnership with the Ukrainian association of visual industry and Donetsk CCI