Preparation and assistance in filing complaints about discriminatory terms of tender documentation

In accordance with the current legislation, namely the Law of Ukraine “On Public Procurement”, certain requirements must be taken into account in the process of drawing up tender documentation (hereinafter referred to as the TD). Among other things, the TD must not contain requirements that can be regarded as discriminatory. Today, there is no exhaustive list of discriminatory conditions. That is why customers are obliged to analyze and determine the absence of discriminatory components in the TD in each specific case. The Antimonopoly Committee of Ukraine is responsible for determining such components. Preparation and assistance in filing complaints about discriminatory conditions in tender documentation is one of the services provided by the lawyers of our company.

The most common reasons for appealing discriminatory conditions of the tender document

A complaint against the tender document is usually filed due to overly complex or illegal requirements for potential suppliers, as well as:

• Unclear criteria for evaluating proposals.
• Unjustifiably high requirements for the material and technical base of suppliers.

We suggest considering some examples of discriminatory conditions in the tender documentation.

Example No. 1.

The customer indicated in the tender documentation that the public procurement participant must have appropriate qualifications, thorough theoretical training and necessary experience, which are confirmed by: a certificate of the presence of employees with appropriate qualifications; documents confirming the fact of undergoing training or advanced training in the field of public procurement, issued in 2020.

The board determined that the customer’s requirement to provide documents on advanced training in 2020 is discriminatory.

Example No. 2.

In the tender document, the customer specified that the potential bidder should have 50 qualified employees on its staff. Only under this condition will the supplier be able to receive 20% of the possible 100% during the evaluation according to the non-price criterion.

Analyzing this case, we can conclude that the customer of public procurement committed a violation. The system evaluates the tender offers automatically. The basis is the criteria and evaluation methodology defined by the customer in the tender document.

Among the criteria that form the evaluation:

1. Price (specific weight – 70%).
2. Non-price criteria (availability of qualified employees – 20%, volume of work performed without involving subcontractors – 10%). To receive 20% according to the criterion “availability of qualified employees”, the participant must provide documentary confirmation of the presence of 50+ qualified employees on the staff in the tender offer.

As practice shows, when such a requirement is established in the DT without reference to non-price criteria, the Board of the Antimonopoly Committee of Ukraine makes a decision to eliminate such a discriminatory requirement.

Our lawyers successfully challenge such non-price criteria. According to the current legislation, such requirements are not provided for.

Example No. 3.

The customer indicated in the tender documentation that all documents drawn up by the participants must necessarily have the signature of an authorized person and a seal.

The board established that the customer did not substantiate the existence of the above requirement in the tender documentation. That is why it is defined as discriminatory, because participants in public procurement may be business entities whose activities do not require a seal. The customer is obliged to make changes to this part of the tender documentation.

Thus, all of the above examples can be regarded as discriminatory conditions of the tender documentation. Our company’s lawyers will be able to appeal them.

How to appeal discriminatory conditions in tender documentation?

The main requirement for any complaint submitted to the Antimonopoly Committee of Ukraine is justification. The complaint requires the presence of mandatory components:

• Name of the customer, location.
• List of grounds for appeal.

This paragraph specifies in detail which actions/inaction of the customer led to the appeal. It is also worth giving convincing arguments.

• Giving examples of the legitimate rights and interests of the bidder that were violated by the customer.
• Documentary confirmation of the violation of the public procurement procedure by the customer.

It is also important to clearly substantiate the requirements. The result of considering the complaint may be:

1. Cancellation of the customer’s illegal decision.
2. Elimination of discriminatory requirements.
3. Correction of tender documentation.
4. Cancellation of the procurement.

The complaint is submitted via the electronic platform (option “Submit a complaint”). When filling out the electronic form, you must additionally attach a scanned written copy of the document.

Our company’s lawyers will help you quickly and efficiently draw up and file a complaint about discriminatory conditions of the tender documentation. We look forward to your consultation!