Wartime is a difficult period for any country, including Ukraine. In such unpredictable conditions, conducting tender purchases becomes especially important, because meeting the needs of the army, national security, medical institutions and other budgetary organizations becomes an extremely important task.
In the conditions of martial law, the Cabinet of Ministers of Ukraine, in order to simplify the lives of customers and participants, adopted the Resolution On approval of the specifics of public procurement of goods, works and services for customers, provided for by the Law of Ukraine “On Public Procurement”, for the period of the legal regime of martial law in Ukraine and during 90 days from the date of its termination or cancellation. It simplified a number of conditions, in contrast to the usual procedure for carrying out procurement according to the Law of Ukraine “On Public Procurement”.
The main differences between the documentation and the Features
- Limited disclosure of information regarding sensitive customer and participant data, however, such non-disclosure cannot relate in particular to the price, technical characteristics of the product, participant qualification criteria and documents confirming the absence of grounds for rejecting such an offer.
- It is possible to accept proposals with prices higher than the expected purchase price, but it is worth paying attention to the possible percentage of price overrun, which is also indicated in the documentation.
- Open auctions can be conducted with or without an auction, while in auctions without an auction, consideration of offers starts from the lowest offered price, and auctions can take place even with the submission of an offer by only one participant.
- Buyers are allowed to specify only one qualification criterion in accordance with Article 16 of the Law, so many procurements do not require confirmation of the availability of material and technical base, employees or proof of financial status. However, more often than not, there is a criterion for the execution of a similar contract.
- Specifics include additional grounds for cancellation of tenders, in particular, a reduction in the amount of budget allocations and the impossibility of procurement due to force majeure (for example, hostilities).
- Special features exclude the participation in purchases of individual entrepreneurs who are citizens of the Russian Federation/Republic of Belarus and legal entities whose owners are such citizens, as well as participants who offer goods originating from the Russian Federation/Republic of Belarus with us persons
- Also, the terms for announcing procurements, submitting proposals, making and challenging customer decisions have also been slightly changed.
Despite the martial law, tender procurement should be based on the principles of competitiveness and transparency. Organizations wishing to participate in tenders should be given an equal opportunity to compete and submit proposals. At the same time, the openness and transparency of the procedures should be ensured, and electronic platforms and systems should be used to ensure the honesty and efficiency of tenders.
The preparation of tender documents is a complex process that requires attention to detail and accuracy. The features of this process are a thorough analysis of requirements, clarity and comprehensibility of documentation, openness and transparency of procedures, determination of terms and procedures for submission of proposals, as well as provision of information support for bidders. Even the presence of the specifics of martial law does not allow the parties to the procedure to violate the main principles – transparency of procurement, their economic benefit and competitiveness.
Legal support in the process of preparing tender documentation is important to ensure compliance of documents with legal requirements and reduce risks for the customer.
The main tasks of a lawyer in the preparation of tender documents include:
- analysis of legislative requirements (both the main law and specifics),
- preparation of documentation,
- ensuring legal accuracy,
- risk management,
- development of a risk management strategy,
- tender purchases.
Preparation of tender documentation requires specialized knowledge in the field of procurement law and great attention to detail. Therefore, cooperation with Prikhodko and partners can be useful both for customers who seek to ensure legal compliance and efficiency of their tender procedures, and for participants who seek to participate on an equal competitive basis with transparency and economic benefit.