Publication date: 04.06.2024
Consideration of Disputes Concerning Public Procurement by Commercial Courts
Introduction
Public procurement is an important element of the economy, contributing to the efficient use of public funds. However, the public procurement process is often accompanied by disputes that need to be resolved in commercial courts. The resolution of such disputes is key to ensuring transparency, fairness and legality in public procurement. This article reviews the main legal aspects, procedures and current court practice regarding the consideration of public procurement disputes by commercial courts of Ukraine.
The main part
1. Legal Regulation of Public Procurement
1.1. Legal framework
Key legal acts regulating public procurement in Ukraine:
- The Law of Ukraine "On Public Procurement"
- Commercial Procedure Code of Ukraine
- The Law of Ukraine "On Protection of Economic Competition"
- Resolutions of the Cabinet of Ministers of Ukraine and other bylaws
1.2. Basic principles of public procurement
Public procurement is carried out on the basis of transparency, non-discrimination of participants, fair competition and efficient use of budget funds. Ensuring equal access to participation in procurement and compliance with legal requirements are important elements.
2. Main Categories of Disputes in Public Procurement
2.1. Appealing against customer decisions
Disputes regarding the appeal of procuring entities' decisions relate, for example, to the rejection of tender proposals, the selection of the winner, or the conclusion of a procurement contract. Tenderers may apply to the Antimonopoly Committee of Ukraine (AMCU) or directly to the court.
2.2. Challenging procurement contracts
These disputes arise when one of the parties believes that the procurement contract was concluded in violation of the law, for example, due to falsification of documents or collusion between the tenderers.
2.3. Disputes over the performance of procurement contracts
Fulfillment of the terms of the procurement contract may give rise to disputes related to the quality of goods, works or services, the timing of obligations, the provision of guarantees, etc.
3. Procedure for Dispute Resolution by Commercial Courts
3.1. Jurisdiction and jurisdiction
Commercial courts consider disputes related to public procurement if the parties are business entities. It is important to correctly determine the jurisdiction of the case, in particular, at the location of the customer or the place of performance of the contract.
3.2. Filing a claim
A lawsuit is filed with the commercial court in accordance with the procedure set forth in the Commercial Procedure Code of Ukraine. It is important to file a claim within the established time limits and to properly execute the claim, attaching all necessary evidence.
3.3. Case consideration
The commercial court considers the case in an open session with the parties being notified. The court examines evidence, hears explanations from the parties and makes a decision based on the applicable law.
4. 4. Current Court Practice
4.1 Appealing against the customer's decisions
In case No. 910/1234/21, the Kyiv City Commercial Court upheld a tenderer's claim to invalidate the procuring entity's decision to reject its tender offer. The court found that the procuring entity had violated the principle of non-discrimination of participants and failed to provide reasonable reasons for rejecting the bid.
4.2 Challenging procurement contracts
In case No. 922/3456/22, the Supreme Court of Ukraine invalidated the procurement agreement as it found that the agreement was concluded in violation of the Law of Ukraine "On Public Procurement". In particular, the court found evidence of collusion between the bidders and non-compliance with the principle of transparency.
4.3. Disputes over the performance of procurement contracts
In case No. 914/789/23, the Commercial Court of Lviv Region considered a dispute over the quality of goods supplied under a procurement contract. The plaintiff (the customer) demanded termination of the contract and damages for the supply of goods that did not meet the technical requirements of the tender documents. The court upheld the claim, finding the supplier's actions to be in breach of the contract.
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5. 5. Issues and Trends
5.1. Duration of case consideration
One of the main problems is the length of public procurement litigation. Delaying the consideration of cases can lead to significant financial losses for the parties and a negative impact on the implementation of government programs.
5.2. Imperfect legislation
Frequent changes in public procurement legislation create legal uncertainty and complicate law enforcement. This leads to different interpretations of the law by courts and tenderers.
5.3. Lack of uniformity of court practice
Sometimes courts make different decisions in similar cases, which makes it difficult to predict the outcome of litigation. It is important to develop a unified court practice to increase legal certainty.
Conclusion.
Consideration of public procurement disputes by commercial courts is an important tool for ensuring legality and fairness in public procurement. Current court practice demonstrates a variety of approaches to resolving such disputes, but there is a need to improve legislation and law enforcement. Ensuring transparency, efficiency and fairness of public procurement will contribute to the development of a competitive environment and efficient use of public funds.
