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Public procurement, which was created in Ukraine back in 2016, operates on the principles of fairness, fair competition, openness, transparency, non-discrimination, etc. All this enables both the participants of public procurements and their customers to defend their legal rights and interests during tenders. However, in practice, public procurement customers often find themselves in such a situation, where a complaint is filed against their tender to the appeal body (AMCU) regarding illegal decisions made within the framework of public procurement or violations of regulatory and legal acts in this area, which leads to the emergence of certain difficulties and needs for their further solution. This shows the relevance of the chosen topic. That is why in this article we will talk about what to do if your tender has been contested in the AMCU.
What actions must be taken by the customer if his tender was appealed to the AMCU?
First of all, you should not panic in such a situation, because sooner or later in the life of every customer of public procurement, there are cases when participants of tenders file a complaint with the AMCU. At the same time, it should be remembered that even when the AMCU appeals body makes a decision in favor of a public procurement participant, you still have the opportunity to implement this decision in time and resolve the situation in such a way as not to pay fines for violations of the legislation in the field of public procurement. namely:
- if such a situation arose where a complaint from a public procurement participant was submitted during the terms of submission of proposals on the terms of the tender documentation, and the customer is quite sure that such a complaint will be satisfied and the tender participant is 100% right, then it is possible to make changes to the public procurement, not while awaiting a decision from the AMCU appeals body, thus eliminating this violation;
- if a public procurement participant filed a complaint with the AMCU, which the customer denies and considers illegal, then in this case the latter has the opportunity to submit an explanation to the complaint through the electronic procurement system, which will ultimately contribute to a more well-founded decision on the case.
Importantly! When making changes to the public procurement, against which a complaint was submitted to the AMCU, the customer is obliged to inform the appeal body about these changes.
What should the customer understand when his tender was appealed to the AMKU?
In the case of a decision in favor of a public procurement participant regarding a previously filed complaint, the AMCU appeals body obliges the tenderer to eliminate the specified violations within 30 calendar days. In addition, the procurement procedure will be blocked at this time.
If the tender customer has fulfilled all the actions and requirements that were specified in the decision of the AMCU, and the procurement procedure is still not unlocked, then in such a situation, it is also necessary to notify about the implementation of the decision in the electronic procurement system. In other words, the tender will not be able to proceed to the stage of conducting an auction, etc.
Is it possible to appeal the decision of the board?
Ukrainian legislation provides the opportunity for the customer of public procurement to appeal the decision of the AMCU to the judicial authorities, namely:
- if you appeal decisions regarding the protection of economic competition, the limitation of monopolies in economic activity, and the protection against unfair competition, you must apply to the commercial court;
- if you appeal complaints about violations of legislation in the field of public procurement, you need to appeal to an administrative court.
Importantly! The appeal period is 30 days from the moment of publication of the AMCU decision in the electronic procurement system.
Has your tender been contested at the AMCU and you don’t know what to do? In such a case, one cannot do without the help of qualified lawyers – the Prykhodko and Partners law firm.
Our team will advise you on all possible actions to build an effective defense strategy, because we always work for the result for our clients. Get in touch!