leksandr Shatkovskyi Step by step How to submit EBRD

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					    Conditions and
      Peculiarities of
      Submission of
      Complaints in
     Ukraine. Typical
   Errors/Infringements
        Relating to
      Submission of
       Complaints


       Kyiv, 19-20 April 2012
       Olexander Shatkovsky
EU Project “Harmonization of Competition
    and Public Procurement Systems in
        Ukraine with EU Standards”
Requirements to the complainant -- 1

•   Complainant status (eligibility) – a natural or a
    legal person turning to the review authority in
    order to protect its rights and legal interests in
    regard to a decision, act or omission on the
    part of the contracting authority which
    contradicts the public procurement law and
    results in an infringement upon the rights or
    legal interests of such person.
•   Presumption of the status – does it need to be
    proved?
Requirements to the complainant -- 2

Submission requirements:
• Payment of a fee and submission of a payment evidence together
  with the complaint (a payment order with the following endorsement
  of a credit institution “Credited to the public budget revenues___
  UAH (date)”. This endorsement must be certified with two signatures
  of the credit institution officials and its stamp with the date when the
  payment order was transacted).

• A copy of the complaint is to be provided to the contracting authority

• Deadline – 14 calendar days from the date when the grounds
  occurred (but not later than the bid submission deadline if tender
  documents are challenged)
Procedural grounds for not reviewing/rejecting
               a complaint -- 1
• Non-compliance with Article 18, inter alia
  -- definite rejection – non-payment of the fee (failure to
  provide payment evidence), missed deadline and non-
  compliance of the complaint form and content with the
  requirements set out in Article18.1;
  -- rejection is less likely – failure to provide the CA with a copy
  of the complaint, failure to prove the status (eligibility) of the
  complainant (except for situations with parties which are
  apparently not related to the review)

• Withdrawal of a complaint by the complainant – at the AMCU
  discretion

• Evidence that the contract had been signed before the
  complaint was submitted
Procedural grounds for not reviewing/rejecting
               a complaint -- 2

• The complaint concerns the same infringement
  in the same procurement and the same grounds
  which have already been reviewed by the RA
  and in regard to which the RA has already
  passed a final decision;
• CA has admitted and rectified, in accordance
  with the law, the infringements mentioned in the
  complaint and has provided a documentary
  evidence of this.
   Requirements to the form and content of a
                  complaint

• Complaints must be submitted in writing with a signature of the
  complainant (and the name of RA);

• A complaint must contain (preferably in the following order):
  -- name, place of residence (location) of the complainant, phone, fax, etc.
   no. and email (if any);
   -- name, location and mailing address of the CA whose decisions, acts or
   omission are being complained against;
   -- grounds for the complaint, reference to infringements of the procurement
   procedure or decisions made, acts or omission of the CA, actual
   circumstances which can be used as evidence for this, date when these
   decisions, acts or omission became known to the complainant;
   -- requests of the complainant and their substantiation.

• Attached to the complaint must be documents (if any) which
  evidence the infringement of the procurement procedure or illegality
  of the decisions, act or omission on the part of the CA.
    Template (example) of a complaint -- 1
                                                             AMCU – PP Review Authority
                                                                     Cc : Name of the CA
                                                   Complainant – name, address, tel., email

                     Complaint regarding a procurement procedure
Following Notice No. ____ published in the information bulletin “Journal of Public
       Procurement” No. ___ (___) dated _____ about an open tender for the purchase of
       goods «________», Company __________ expressed the intention to participate in the
       procurement and sent a request to provide it with the tender documents (TD), (letter
       dated ____ No. ___, see a copy attached).
After a detailed analysis of the TD received _________ (date of receipt) (see a copy attached)
       we found discriminatory provisions which contradict the current public procurement
       legislation and the procurement procedure. If these infringements continue, this will
       violate our legal rights to participate in the tender according to its procedures set out in
       the law.
The following TD provisions are considered as grounds for the complaint:
       1) The equipment parameters defined in the technical requirements to the subject of the
       procurement (Appendix 2 of the TD), although there is a formal expression “or
       equivalent”, strictly limit the subject of the procurement by products of Company
       _______ in violation of Article 22.1.3 and Article 22.3 of the Law of Ukraine “On Public
       Procurement” (PPL). Such parameters are used in the following technical
       requirements____________.
  Template (example) of a complaint -- 2


2) The qualification criteria (Appendix 1 of the
   TD) include a financial capability
   requirement for the bidders to have a
   charter capital or an average annual
   turnover in the last 3 years not less than
   200% of the bid price
3) The qualification criteria (Appendix 1 of the
   TD) include an asset requirement for the
   bidders to own a fleet of vehicles for
   transporting the procured equipment
  Template (example) of a complaint -- 3

Therefore, we request as follows:
•   To suspend the procurement procedure in order to prevent the CA
    from violating its legality;
•   To oblige the CA to change the TD in order to eliminate the
    discriminatory requirements and conditions, namely in Appendices
    2 and 3 of the TD.
•   Once the changes are made, to extend the bid submission
    deadline by not less than 10 working days.
Please review this complaint and ensure that a decision is made
    according to our request and Article 18 of the Law.


Company Manager            ________          Full Name
                           signature, seal
    Typical errors/infringements reviewed -- 1

1) Most complaints concern the content of the TDs, namely:
•   The information in the TD required by Article 22.2 of the Law is
    missing or vague;

•   Technical requirements to the subject of procurement are
    incomplete, vague or discriminatory;

•   Violation of Article 22.2.3 of the Law as regards references to a
    specific trade mark or firm;

•   Establishment of discriminatory requirements to bidders, in
    particular as regards the evidence of their qualification, as well as
    restrictive/groundless qualification requirements and requirements
    to provide evidence of the same (letters of authority from
    manufacturers, experience working with public budget
    organizations);
    Typical errors/infringements reviewed -- 2
• Contract term sheet or draft contract contradict other conditions and
  substantive provisions of the TD;

• Failure to split the procurement subject into lots.             CAs quite often fail to
   split the procured item into lots in the TD and then accept several bids in violation of
   the procurement law and their own TDs. If a CA does not expressly indicate the
   possibility to bid for separate lots in the TD, the CA may accept and evaluate only the
   bids which concern the whole item, not its separate parts.

• CA provides replies which are different by substance when
  requested by bidders; makes conflicting changes in the TD; fails to
  disclose or to notify changes in the TD to all bidders;

• Failure to set requirements to the bid price format making it
  impossible to compare prices;

• Excessive tender security size
     Typical errors/infringements reviewed -- 3
2) Violations of the bid opening procedure, in particular:
• Information is not disclosed as required;
• Documents required in the TD are not checked for presence and correctness;
• Decisions to reject or to adjust the bids to the CA requirements are made during the
    bid opening procedure, arithmetical errors are discussed and corrected orally, etc.
• CA fails to provide a copy of the bid opening protocol upon request from bidders;


3) Acceptance of a bid which does not comply with the TD
   requirements and must be rejected, and vice versa – unlawful
   rejection of bids;

4) Missed publication and contract signing deadlines.
• Thank you for attention!

				
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posted:10/2/2012
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