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COMPLAINTS ABOUT THE TENDER DOCUMENTATION. WHAT YOU SHOULD KNOW?

 According to the Public Procurement Law, it is possible to file complaints about tender documents and / or decisions, actions or omissions of the customer that occurred before the deadline for submitting tenders.

 The lion’s share of complaints in this category are complaints about discriminatory tender conditions. Such a complaint can be filed by both a bidder and a potential participant (at the time of filing – a registered user of the system).

 The law stipulates that tender documents are documentation on the terms of the offer, which is developed and approved by the customer and published for free access in the electronic procurement system.

 Secondly, tender documents should not contain requirements that restrict competition and discriminate against participants. One of the principles of public procurement in Ukraine is non-discrimination of participants. The customer must not impose any discriminatory requirements on the participants. However, there is no definition of discriminatory requirements and no list of discriminatory requirements in the legislation.

Some common requirements for bidding documents that may be considered discriminatory are:

 Determination of the technical requirements for the product, which correspond only to the product of a specific manufacturer. In this case, the Antimonopoly Committee of Ukraine (AMCU) will study the possibility of participating in the tender for at least two participants.

 The complainant must prove the violation of his right to participate in the tender for the unlawful statement by the customer of the requirements for the goods.

 The customer must be ready to provide AMK with information and documents confirming the presence of at least two manufacturers whose products meet the requirements of the tender documents. Failure to provide such information and documents by the customer leads to the satisfaction of the AMCU complaint and the obligation to amend the tender documents.

 Obligation to provide documents that are not required by law.

 Sometimes tenderers have to provide additional documents that are not required / not provided for by law.

 The law does not allow customers, at their discretion, to make demands that exceed the requirements provided for by law. The absence of documents in the tender proposals of the participants, which are not provided for by law, cannot be a reason for refusing to participate in the tender. In this case, customers must prove to the AMCU that the requirements for tender documents are at the level of the law and do not go beyond it.

 Availability of employees with the appropriate qualifications who have the necessary knowledge and experience. The complainant must demonstrate why this requirement discriminates against him – this makes it impossible to participate in the tender and, accordingly, violates the legitimate rights and interests of the applicant.

!! Participants must remember:

that the complaint, even if the result is positive, is not a win in the tender, but only allows you to participate in it.

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