Appealing against the unlawful recognition of the winner

According to current legislation, the Antimonopoly Committee of Ukraine (AMCU) is the appeal body in public procurement. In what cases will an appeal be necessary? For example, it is not uncommon for “necessary” suppliers to win public procurement. To appeal the unlawful recognition of the winner, it is necessary to file a complaint through the electronic procurement system.

Deadlines for Appeal

The Law of Ukraine “On Public Procurement” defines the following deadlines for appealing against the unlawful recognition of the winner:

• 10 calendar days – for the procedure of Conclusion of a Framework Agreement.
• 4 working days – for Simplified Bidding.
• 5 calendar days – for Open Bidding with Features.

Important: only the bidder can appeal against the unlawful recognition of the winner. The exception is tenders under the Negotiated Procedure. In this case, any user of the system can file a complaint.

Features of the appeal procedure

Regardless of the status of the procurement, the form of the complaint is standard. When creating a complaint, the following must be taken into account: justification, evidence and requirements.

The registration of the complaint begins with its brief formulation. That is, it is necessary to indicate that we are talking about the unlawful recognition of the winner.

Each point of the complaint must be substantiated. Type of requirement – to oblige the customer to cancel the decision on determining the winner of the procurement procedure and the notification of the intention to conclude a contract.

The mandatory step is to add documents (the number of files is unlimited). Important: after uploading, documents cannot be updated or deleted. The “evidence” category is optional, i.e., not required to be filled in.

Thus, the complaint must reflect the following components:

1. Name of the public procurement customer whose decision is being appealed.
2. Name, place of residence of the subject of the appeal.
3. Grounds for the appeal.

In this paragraph, it is important to provide a link to the violation of the procedure for recognizing the winner of the tender and its confirmation.

1. Documents (evidence of the legality of the appeal of the unlawful recognition of the winner).
2. Requirements and justification of the subject of the appeal.

Please note: filing complaints is carried out on a paid basis. This is regulated by the Resolution of the Cabinet of Ministers of Ukraine No. 1178. The cost of filing a complaint is 0.3% of the expected tender value (not less than 2,000 hryvnias and not more than 85,000 hryvnias); after the opening of tender offers – 0.6%.

The amount of the service is calculated automatically by the electronic procurement system.

Examples of unlawful recognition of the winner

The basis for challenging the unlawful recognition of the winner may be the connection between the customer and the winner. What is this about?

The connection occurs under the following circumstances:

• The winner of the tender is a legal entity that controls or is under the control of another participant in public procurement.
• Two tenderers are under the control of one non-tenderer (has indirectly or directly at least 25% of the votes in the management bodies).
• Two participants in public procurement have the same manager or family member.
• The winner of the tender is controlled by the manager or authorized person of the customer.

Let’s consider an example from practice. Article 17 of the Law of Ukraine “On Public Procurement” clearly states that the tender offer of a participant must be rejected in cases of proving his connection with other participants in the procurement, the manager of the customer, etc.

If the customer for some reason did not check the connection between the bidders, both at the stage of public procurement and after determining the winner, this may lead to an appeal procedure.

The AMCU considers the complaint and makes a decision, for example, an obligation to the customer to cancel the unlawful decision.

Therefore, the result of the appeal may be the cancellation by the customer of the decision to determine the winner (if there are grounds for this, provided for by current legislation). In the future, the winner is determined among other participants.

Let’s consider an example from practice. Article 17 of the Law of Ukraine “On Public Procurement” clearly states that the tender offer of a participant must be rejected in cases of proving his connection with other participants in the procurement, the manager of the customer, etc.

If the customer for some reason did not check the connection between the bidders, both at the stage of public procurement and after determining the winner, this may lead to an appeal procedure.

The AMCU considers the complaint and makes a decision, for example, an obligation to the customer to cancel the unlawful decision.

Therefore, the result of the appeal may be the cancellation by the customer of the decision to determine the winner (if there are grounds for this, provided for by current legislation). In the future, the winner is determined among other participants.

awful recognition of the winner of the auction. Our company’s lawyers will help you file a complaint and draw up all the necessary documents. We look forward to your consultations!