Publication date: 06.02.2024
I am studying in the third year of the State University of Economics and Technology.I specialize in contractual, economic and corporate law, in particular, I provide consultations and write articles.
During the tender, cases of violation of the rights and interests of participants may arise due to unlawful actions of customers. Discriminatory requirements, unreasonable rejection of a participant’s tender proposal, non-compliance of the customer’s tender documentation with legal requirements - all these are practical situations that negatively affect the transparency of public procurement and, accordingly, their results. At the same time, the legislation provides the opportunity to protect violated rights by tender participants by appealing against unlawful actions both pre-trial and in court. In any case, the appeal procedure is quite complex and requires significant effort to achieve the desired result, so participants may need defense in court by involving an experienced lawyer. It is worth noting that the methods covered relate to appeals during above-threshold procurements.
Submitting a complaint to the Antimonopoly Committee of Ukraine as a method of pre-trial appeal:
According to Art. 18 of the Law of Ukraine “On Public Procurement”, in order to protect the rights and interests of persons related to the public procurement procedure, the Antimonopoly Committee of Ukraine acts as an appeal body by creating an appropriate Commission authorized to consider complaints. The complaint itself is submitted electronically through the electronic procurement system. It should be noted that the imposition of a qualification signature in this case is mandatory. As for the content of the complaint, it must consist of the following provisions: information about the customer, grounds for appeal, justification for the existence of rights and interests for violation of which the participant submits the complaint and a list of documents confirming them, as well as the demands that the complainant makes to the customer. The evidence that supports the demands and all other provisions set out in the complaint is extremely important. Evidence must be attached to the complaint in electronic form. It is equally important to comply with the deadlines set by law for appealing. Thus, if the complaint concerns the customer’s tender documentation, then the deadline for its submission will begin from the moment of publication of the announcement of the public procurement and expires four days before the deadline for submitting proposals. If the subject of the appeal is the actions or inaction of the customer in the period before the expiration of the deadline for submitting proposals by the participants, then the subject of the appeal may file a complaint within ten days from the moment when he learned, or should have learned, the fact of violation of his rights, but no later than four days before the deadline for submission of proposals. You can also appeal the customer’s decision as a result of consideration of the participants’ tender proposals within five days after the publication of the review protocol. If the complainant misses the above deadlines, the electronic system will not automatically accept the complaint. The complaint is considered by the commission within 10 days from the date of the decision to proceed. Within three days from the day the decision is made based on the results of the review, it is published in the electronic system. It should be noted that there is a fee for the above-described appeal method.
Judicial appeal procedure:
If the results of the pre-trial dispute resolution procedure do not satisfy the complainant’s demands, then the decision of the Antimonopoly Committee of Ukraine can be appealed in court. The claim must be filed with the administrative court within thirty days from the date of publication of the decision. A participant in a public procurement procedure can bypass filing a complaint with the appeal body and immediately resolve the dispute in court. If the customer does not agree with the decision of the Antimonopoly Committee of Ukraine, he can also file a claim in court in order to declare the decision of the appeal body unlawful. If a dispute arose between the customer and the winner of the tender, then in this case the settlement will be carried out within the framework of economic proceedings. It is necessary to file a claim in court, which briefly describes the circumstances of the case, substantiates the claims (for example, invalidating the contract between the customer and the winner), indicates the methods used for pre-trial settlement of the dispute, and the price of the claim. Equally important will be the evidence of the violated right, which is attached to the claim.
Representative in court when appealing against illegal actions during a tender:
Since the appeal procedure involves drawing up complaints, claims, collecting evidence, and conducting a legal analysis of the situation, representation of interests in court by a lawyer is of exceptional importance. A lawyer for court will help you choose a reliable way to protect violated rights, based on the characteristics of each specific situation, represent the interests of your client and help achieve the desired results in the shortest possible time.
