Challenging the terms of the tender documentation

The modern system of public procurement cannot exist without compliance with the principles of transparency and fairness, and their practical implementation occurs through the mechanism of appealing the decisions of customers and the conditions of the tender documentation. This is necessary in order to reduce the corruption risks that can be created by the customers of tenders, as well as to generally increase the quality of public procurement as a whole. However, today, not every participant in public procurement understands the issues of filing complaints regarding illegal terms of tender documentation, which makes this topic relevant. And therefore, in this article, we will consider the mechanism of contesting the conditions of the tender documentation, taking into account the provisions of the current legislation of Ukraine.

What should be understood by challenging the conditions of the tender documentation?

Challenging the conditions of the tender documentation is a legal mechanism that allows participants in public procurement to challenge and amend requirements that they consider unreasonable, unfair or contradictory in the context of the tender process.

Thus, with the help of this mechanism, compliance with the principles of public procurement is ensured, namely: transparency, equality of all participants and fairness.

What is the appeal procedure?

Article 18 of the Law of Ukraine “On Public Procurement” regulates the procedure for contesting public procurement in Ukraine.

According to this article, complaints can be filed in cases where there are grounds to consider the conditions of the tender documentation as illegal or unfair (discriminatory), as well as against the decisions of the tenderers or their inaction, etc.

Importantly! Complaints related to the tender documentation can be submitted to the appeal body from the moment of publication of the announcement on the conduct of the competitive procurement procedure, but no later than 4 days before the end of the deadline for submitting tender offers, which is set before any changes are made to tender documentation.

What information should be included in the complaint?

• full name of the customer of the contested decision;
• data on the subject of the appeal – name, actual place of residence or location;
• legal grounds for the possibility of filing a complaint;
• detailed substantiation of the existence of violated rights that contradict the legislation in the field of public procurement of the entity that submits the complaint;
• a meaningful list of evidence and facts that confirm the existence of violated rights;
• requirements specified by the subject of the appeal and their justification in accordance with the law.

Documents and materials confirming the circumstances stated in the complaint should also be added to the complaint.

In what cases can a complaint remain unconsidered?

• the subject of the appeal submits a complaint regarding the same subject of the appeal, which was already previously considered by the appeal body and a corresponding decision was made on it;
• it does not meet the requirements established by the Law of Ukraine “On Public Procurement”;
• the tender customer eliminated the violations described in the complaint;
• in the case when the complaint has not yet been made public, and the contracting authority has decided to cancel it or recognize it as having not occurred.

If you need to challenge the terms of the tender documentation, then contacting professional lawyers – Prykhodko and Partners law firm will facilitate the implementation of this intention in practice.

Our team not only has many years of experience working with public procurement in Ukraine, but also thoroughly understands the regulatory and legal acts applicable in this area, which allows us to provide clients with only effective assistance when contacting the company.
Do not delay and come to us for a consultation!