Protection of participants

For business

We understand that the creation of the transparent public procurement system is not a total victory. Now we see two problems with tenders – corruption and inefficiency. It`s not enough just to see the opaque tender. There is a need to defend our rights by all possible means. We have prepared a set of tools that will help to achieve justice and indicate a careless customers that there is no opportunity to quietly do their dirty deeds. The tools that operate for the one client may be ineffective for another, so we advise you to use them all.

1. Ask the procurer to clarify and adjust tender documentation

When you should do it:

  • There is not enough technical or any other information to form offers
  • The customer has prescribed the conditions and characteristics in the way, that  restricts the competition
  • You understand that to deliver the goods, work or service for this price is not possible, because it is below the market value
  • You have any other questions during the proposal preparation

How to do it:

During the refinement period you have the opportunity to contact the customer for clarification online (if you have a need to clarify the tender documents) or to call (if you see that customers violate the Law “On public procurement”) through your account on the site. On the threshold procurement customer is obliged to give a response to your appeal online within three days. There is no need to call the customer and try to receive the answer on the phone. Telephone consultations do not have any value in the further resolution on the issues. The system is electronic, therefore, lead all negotiations with the customer online.

2. Appeal against the conditions of tender or the decision of the customer

When you should do it:

  • The procurer has prescribed the conditions and characteristics in the way which restricted competition, and did not eliminate it on your own requirements
  • You were disqualified wrongly
  • You suspect that the winner was classified wrongly (because of procurer`s incompetence or because of possible collusion)

How to do it:

Belowthreshold procedure

The appeal process on belowthreshold procurement is determined in accordance with the Procedure of the implementation of belowthreshold procurement. Registered users can appeal the procurement through one of the authorized sites. The appeal of belowthreshold procurement is free. Steps:

  • The user creates a “Requirement” that is sent to the Procurer for review. Within 3 days customer considers the Demand and announces his decision in the system.
  • If within the specified period the Procurer will not publish the decision or the initiator of the complaint is not satisfied with the results of its review, the system automatically generates “Appeal” to the Commission for consideration of appeals. “Appeals” are dealt with within 14 days, the decision of the Commission on consideration of appeals promulgated as a response to the “Claim/Appeal”. The Commission's decisions are Advisory in nature, but in 35% of cases, the clients still take into account these decisions and adjust their actions.

You should know that for some customers there is a procedure for holding of Subthreshold procurement at the local level. For example, the utilities of the Dnipro city conduct their Subthreshold procurements in accordance with the regulations of the Dnipro city Council.

If you have already signed a contract there is still the possibility to file an appeal to the Prosecutor, which also can sue to the court for termination of the agreement in turn, if it contradicts the interests of the state.

Above threshold procedure

The appeal process of above threshold procurement is defined in article 18 of the Law “On public procurement”. You can appeal the procurement through online account on the site. Complaints are dealt with by the Anti-Monopoly Committee of Ukraine within 15 working days. Complaint on appeal (AMC) is charged, the amount of charge is determined by the Cabinet of Ministers of Ukraine. Before the auction you can appeal the conditions of procurement, after acceptance you can appeal the decision of the customer on the disqualification/qualification.

There is also a submission of the application on holding (monitoring) of compliance with legislation on public procurement in the State audit service.

If the tender is conducted by means of the state budget, it is possible to apply for the audit of the Accounting chamber.

3.Convey about the problem to senior manager, Ministry or other structure, which customer obey to

When you should do it:

Always, simultaneously with the demand and formal complaint. We often see the situations when the Ministry is both hands “for” transparent procurement, but due to the lack of resources cannot monitor all conducted procurements of subordinated enterprises. Practice shows that a very effective instrument of pressure on business customers is to appeal to the senior managers. Write a letter-requirement about elimination of violations and put customer in a copy.

How to do it:

Prepare official letter on the address of the institution, which customer is subjected to with a copy to the customer. Official letters are registered and the recipient must provide a letter response. Send your letter by mail with a letter. A scan of the letter can be sent to the official mail of the institution.

4. Make the procurer famouse for all the country

When you should do it:

Always, simultaneously with the requirement, formal complaint and email to the senior managers.

The contractors are afraid of public exposure of their misconduct. Many of them are planning a political career, we all have leadership, neighbours, friends, and all bribery transactions are usually conducted on the sly.

How to do it:

  • Post a review on procurement and rate the procurer on the dozorro.org.
  • Write to us and we will include information about the “unreliable” tender in our weekly column #treasonvictory. Column is heading out on Monday during the year and we see that this is a very effective lever to return the customer in a transparent reality. Almost 40% of the tenders that fall into this category as #treason were abolished and announced again with more adequate conditions.
  • Contact the regional public organizations and the media. They will conduct an independent investigation and make the customer known throughout the region. Letter-requirement can be an effective tool to eliminate violations from civil society organisations, to ensure that the customer saw that there is public control over procurements.

Customers` responsibility in case of violation of the Law “On public procurement” and regulations developed for its implementation

For violation of the requirements established by Law, the members of the tender Committee hold personal administrative responsibility. A fine is imposed on members of the tender Committee in the amount of 700 to 1,000 non-taxable minimum incomes of citizens. The same actions committed repeatedly during the year after the penalty from 1000 to 1500 non-taxable minimum. In the first case it is 11900-17000 UAH, in the second –17000-25000 UAH.

REMEMBER THAT VERBAL AGREEMENTS WITH THE CUSTOMER HAVE NO LEGAL FORCE – IT IS YOUR WORD AGAINST THE WORD OF THE CUSTOMER.

Document templates*

Form for appeals to the State Audit Service, the Accounting Chamber of Ukraine, customers, and authorities to which they referred, community groups, the Prosecutor's office (in case of submitting the request to file a lawsuit to protect the rights of the state) and the AMCU with regard to collusion of the parties (if the applicant's rights are not violated).

The action of this form does not cover procedure of consideration of applications and complaints of citizens, established by the criminal procedural code, laws on protection of economic competition, the Code of administrative procedure of Ukraine, law of Ukraine "On prevention of corruption" and the law of Ukraine "On public procurement".

When sending written requests, it is better to use Ukrposhta, and send letters with a list of attachments and a notice so you can have proof that the appeal was directed, and will be informed about acceptance of your application.

The template of application to the AMCU for use by persons whose rights are violated by the collusion of the participants in the tender (competition).

The pattern of complaint to the AMCU for the situation when the participant's bid was wrongfully rejected, or when the offer was rejected, and, therefore, the customer determined the winner of another participant.

The pattern of complaint to the AMCU for the situation when customer`s requirements in the tender document were discriminatory or illegal.

*materials and templates of complaints prepared with the assistance of law firm “The Right Thing”