Preparing a complaint about the wrongful rejection of the Participant’s proposal

Quite often, in the process of conducting public procurement, customers encounter poorly prepared tender proposals. The current legislation provides for a mechanism for rejecting such proposals. The Law of Ukraine “On Public Procurement” lists 11 grounds for rejecting a participant’s proposal, and this is up to the stage of determining the winner. However, the customer does not always correctly choose the grounds for rejecting the proposal. That is why the bidder has the legal right to appeal the unlawful rejection of the proposal. The lawyers of our company will help you with this.

In what cases can a procurement participant’s proposal be rejected?

In order to reject a participant’s proposal, the customer must start by analyzing the requirements set out in the tender documentation (hereinafter referred to as the TD). After the analysis, a register of documents is compiled.

The next stage is a comparison of the information or document provided by the participant with the specific requirements of the TD. If there are grounds for rejecting the tender proposal, the “24-hour” mechanism may or may not be applied (if a discrepancy is also found in other documents, the customer does not apply this mechanism). If the identified discrepancies are not eliminated by the public procurement participant in a timely manner, the tender proposal is rejected.

The customer is obliged to provide detailed information about the reasons for rejecting the tender proposal:

1. Grounds for rejection.
2. Reference to the provisions of the Law.
3. Terms of the TD that the participant’s proposal does not meet.
4. Description of the nature of the discrepancy.

A rather big problem is that the customer does not always clearly formulate the requirements at the stage of preparing the tender document. For example, it does not indicate how the public procurement participant can confirm this or that requirement. Also, the content and form of individual documents are not always clearly specified.

As indicated above, the customer may contact the bidder if inaccurate information, inaccuracies, etc. are identified in the tender documentation.

However, if the customer did not send a corresponding request or did not wait for a response to its request, the rejection of the participant’s proposal will be considered unlawful and subject to appeal.

Our company’s lawyers will prepare a complaint about the unlawful rejection of the participant’s proposal.

Algorithm for appealing against an unlawful rejection of a public procurement participant

If the customer rejected the participant’s proposal without legitimate grounds, the appeal algorithm is applied. First, we note that 10 days are allowed to file a complaint from the day the bidder learned about the violation of his legal rights due to the actions/inaction, decisions of the customer.

A complaint is filed in the process of conducting: open bidding; competitive dialogue; negotiated procurement procedure; framework agreement; limited participation bidding; open bidding for the purchase of energy resources.

A complaint is filed through the electronic procurement system, through your personal account (the “Submit a complaint” tab).

Important: there is a fee for filing a complaint. After payment, the complaint is automatically entered into the Register. A complaint registration card is also formed. After passing all stages, the information is published in the electronic procurement system.

Regarding the issue of the amount of the fee for filing a complaint:

• Appealing the customer’s decision to reject the participant’s proposal – 0.6% of the expected cost (not less than 3 thousand hryvnias and not more than 170 thousand hryvnias).

If the Antimonopoly Committee of Ukraine satisfies the complaint (partially or in full), the fee for filing it is returned to the subject of the complaint (in other cases – transferred to the State Budget of Ukraine).

It is important for the Antimonopoly Committee of Ukraine to clearly justify the violation of its legal rights by the customer. The complaint must clearly state that the fulfillment of the conditions of the customer of public procurement is impossible. Additionally, it is necessary to indicate why.

Therefore, when drawing up and submitting a complaint, it is better to use the help of professional lawyers. If the offer was rejected by the customer for several reasons, our specialists will be able to prove that the indicated reasons are fictitious.

Our lawyers will draw up all the necessary documents clearly, qualitatively and as quickly as possible. We will provide facts and evidence that the rejection of the participant’s offer is unlawful and violates the legal rights of the bidders. We are waiting for your consultations!