Problems of defining and challenging discriminatory conditions during tenders

Article 16 of the Law of Ukraine on Public Procurement contains a list of qualification criteria that the customer may require from bidders when submitting documented information. Discriminatory conditions should be considered that do not meet the established qualification criteria, when other qualification criteria are established that are not defined in the legislation, as the list of qualification criteria is exhaustive. It should be noted that the establishment of certain conditions in different situations may indicate both the presence and absence of discriminatory conditions in connection with certain market conditions, individual characteristics of the performer, place of performance of the contract and so on.

One of the criteria is the availability of equipment and logistics. The following are the most common discriminatory conditions. First, the inappropriate quantity and quality of equipment to be used in fulfilling the terms of the contract. Secondly, the location of the equipment, which may appear at a disproportionate distance from its use, and does not take into account the possibility of their transportation and transportation. Third, irrational features can be established regarding the subject of performance of the contract, under which there is a restriction of persons who can apply for performance of the tender. For example, the production of such a subject of the contract, which can be made only on certain equipment, which has only one company.

The second criterion is the availability of employees with appropriate qualifications who have the necessary knowledge and experience. Under this criterion is often wrongly adjusted additional qualifications of the employee that do not meet the purpose and objectives of the contract. For example, additional scientific qualifications, excessive experience or work experience are established. It is also illegal to limit the relevant qualifications within certain contractors (budgetary institution, state enterprise, etc.) or a certain specialized industry, which is not appropriate in the implementation of the contract. In addition, additional documents may be required, the term of which exceeds the term of the tender. In this case, it should be noted that even if such documents are mandatory, their submission may be required only by the winner of the tender.

The third criterion is the presence of documented experience in performing a similar contract. Subjecting to this criterion quite often set such additional requirements as the period for which the customer should perform such contracts and the period of their performance. Accordingly, it can be set both a disproportionately short period and a disproportionately long length during which the potential bidder entered into contracts, respectively, it may be necessary to have contracts for the period when the potential bidder has not yet been established. Excessively high amounts of contracts concluded by a potential bidder may also be established. In this case, to determine whether the set amount is disproportionately high, it is necessary to analyze the market, namely, how many potential bidders meet the established requirements,

The appeal procedure is that the subject of the complaint submits a complaint in the form of an electronic document through the electronic procurement system, after which the complaint is automatically entered into the register of complaints and its registration card is formed, which is published on the AISW web portal. A fee of UAH 5,000 is charged for filing a complaint. Complaints may be submitted to the appellate body from the moment of publication of the tender announcement, but not later than four days before the date set for the submission of tenders. The AISW shall, within a period not exceeding 3 working days, decide to accept the complaint for consideration or leave the complaint without consideration. The grounds on which the complaint may be left without consideration are defined in Part 4 of Article 18 of the Law "On Public Procurement". The term for consideration of the complaint by the appellate body is 15 working days from the date of the beginning of consideration of the complaint. Based on the results of the review, the appellate body decides to satisfy the complaint in full, in part or to refuse to satisfy it.

Thus, there are many types of discriminatory conditions that must be challenged in the manner prescribed by law. Among the problems related to the appeal procedure is the fact that the appeal fee set by the Cabinet of Ministers is not reimbursable, even if the AMCU decides to satisfy the complaint in full. This leads to abuses by unscrupulous customers, who cancel the tender and do not eliminate discriminatory conditions, causing damage to the subjects of appeal.