Ahiia Zagrebelska about Prozorro

Why are supplier complaints at Prozorro now more frequently satisfied? What needs to be changed in the new edition of the Law "On Public Procurement"? What to expect from the new leadership of the AMCU? Will artificial intelligence consider applications from participants instead of the Collegium? Ahiia Zagrebelska, Co-founder of the "Antitrust League", member of the AMCU Tender Collegium 2015-2019, told us about this and many other things.

Online Participation in a Complaint Meeting: to Be or Not to Be?

In my opinion, there must be an opportunity for grievance and customer participation in grievance review. Unfortunately, today, although the law has had such a rule for several years, the parties cannot join the discussion by videoconference. During the quarantine business, customers did not attend the meetings of the AMCU Collegium and watch the discussion just on YouTube. We have two reasons for the problem: technical and legal. We have two reasons for the problem: technical and legal.

Let's start with the technical component of the problem. The Antimonopoly Committee of Ukraine is a consistently underfunded body. There are still people in parliament and the government who defend the interests of the monopolists. They are not interested in the effective operation of this institution. And underfunding does not allow to build a technically safe working system. As far as I know, the AMCU has already purchased the equipment, but it takes time to install and configure the software, train employees.

Besides, it is impossible to reliably identify the participants. Available hardware and software do not allow it. It is a legal problem. Therefore, customers and business representatives will probably have to go to the territorial branch of the AMCU for an inspection. Now IT allows you to integrate tools for remote identification and authority.

An additional problem is the possibility of disrupting the Collegium meetings by interrupting communication or creating artificial obstacles. A party to the process may do so by predicting an unacceptable outcome. It is enough to adopt a quality by-law framework and place the responsibility on the complainant or the customer. Then Collegium can continue consideration despite artificial technical problems.

The purchasing community is now ready to offer working tools for video conferencing. I hope that the new leadership of the AMCU can start the era of remote participation in the meeting. This need will not disappear. The sooner everyone accepts this fact, the sooner there will be results. The AMCU has been breaking the law for a long time, and for the first few years, society has forgiven it. However, the time will soon come when the supervisory authorities will no longer perceive such a situation loyally.

More Thorough Preparation For Filing Complaints: Which is the Reason?

Since the new version of the Law "On Public Procurement" came into force, a significant part of complaints is satisfied by the Tender Collegium, significantly more than in the old version. But I do not think that public customers have started to work worse and commit more violations. In my opinion, this is due to the business, whose representatives understand two things:

1. Now you need to spend more money on appeals because the amount of payment has increased.
2. The payment for a complaint can be returned if you prepare well.

Earlier in the Prozorro tender with a budget of UAH 100 million, the payment for filing a complaint was the same UAH 5,000. Participants could be submitting complaints just for vengeance (to block the procurement for consideration by the Cpllogium). Today it is an expensive pleasure because in high-budget procurements the fee for filing a complaint can exceed UAH 100,000. That is, today participants are thinking more about whether to file a complaint at all. Company executives and lawyers take a closer look at this issue because they are interested in success and returns.

Appeals in High-Budget Procurements: Main Changes

Tenders, where the amount of payment for filing a complaint exceeds UAH 80 thousand (UAH 170 thousand for works procurements) are few (a total of 102 purchases). Such amounts of payment can deter businesses from appealing because of the real possibility of losing money by the decision of the Collegium. But business representatives compete for multimillion tenders. Preparing to participate in them logically requires raising funds to make a profit and with certain risks.

If big business wants to compete for a big contract, then, in my opinion, it is quite natural that the payment for filing a complaint can be proportional. Therefore, I think that the main part of complaints that are no longer filed due to changes in the amount of payment is hopeless appeals to the AMCU. They were submitted not to protect their interests, but to block the tender. Today, businesses can no longer afford to do so in high-budget tenders.