Response to the tender complaint in the Antimonopoly Committee (AMCU)

Submission of a complaint by tender participants to the Antimonopoly Committee of Ukraine (hereinafter AMCU) is an integral process regarding the legitimate conduct of public procurement in a legal country. This is explained by the fact that individuals exercise their right to challenge the tender, and thus obligate the public procurement customer to comply with the legal norms when conducting it. However, in practice, there are cases when tender participants baselessly or unjustifiably submit complaints to the AMCU about the customer’s decision or inaction, which leads to the need to submit a response to the appeals body regarding all actions taken. This shows the relevance of the chosen topic for today. Therefore, in this article, we will talk about the peculiarities of writing a response to a tender complaint to the AMCU, while analyzing the current provisions of the regulatory legal acts of Ukraine.

What should the response to a tender complaint to AMKU consist of?

The response to a tender complaint to the AMCU must necessarily include the following stages, namely:

• Legal analysis of the situation. If you have received a complaint in public procurement, then there is no need to panic, but on the contrary, analyze the complainant’s demands in detail and prepare your own counterarguments to them in a short time. In addition, it is also important to analyze your actions and inactions for compliance with the laws of Ukraine, as this will allow you to effectively build a defense strategy.
• Gathering the evidence base. In order to effectively provide counterarguments to the complainant’s claims, strong evidence is needed in the case. For example, during an appeal against the cancellation of a procurement procedure in accordance with Clause 1, Part 1, Article 32 of the Law of Ukraine “On Public Procurement” (absence of further need for the procurement of goods, works or services), a document from a higher authority regarding the lack of funding in the current year of the contested subject of purchase.

• Justification of own position. After you have collected the evidence on the case, you should also argue your own position as to why the tenderer’s complaint cannot be satisfied.
• Practice of AMKU. A rather strong argument that will strengthen your defense strategy is the AMCU’s own practice, since in general it should not contradict each other. For example, the customer can indicate that the requirement to provide feedback letters regarding the execution of a similar contract established in the tender documentation is not discriminatory, as it is not burdened with additional conditions for the public procurement participant. This is confirmed by the relevant practice of the Appellate Authority in decision No. 1768-r/pk-pz dated February 15, 2023.
• Sending a reply. After you have written a response to the tender complaint, it must be sent to the AMCU with the mandatory imposition of a qualified electronic signature through the electronic public procurement system.

How can help from the “Prykhodko and Partners” law office be useful?

By contacting the “Prykhodko and Partners” law office, you will be able to receive:

• Analysis of the existing situation taking into account practical experience in public procurement cases;
• Providing consultations and all comprehensive answers to problematic issues in public procurement;
• Building an effective defense to defend your interests in the case;
• Writing all the necessary procedural documents in public procurement (answers, explanations, contesting the conditions of the tender documentation and others);
• Representation of your interests in various state and judicial authorities, including AMCU;
• Full legal support in the case.

So don’t delay and sign up for a consultation!