ENI East Regional Conference Public Procurement Appeals in Ukraine English

1. Public Procurement Appeals
in Ukraine

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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. THANK YOU FOR
ATTENTION!