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Last time we talked about the resumption of consideration of complaints by the Permanent Administrative Board of the Antimonopoly Committee of Ukraine. So, in the second half of April, the Board adopted and published more than 250 decisions. The vast majority of them were taken on complaints published before February 22, 2022, but there were quite a few decisions on complaints filed during the war.

SmartTender lawyers have analyzed all these solutions and are ready to share with you the most interesting and resonant ones.

This material will consider decisions on complaints regarding the implementation of the provisions of Article 17 of the Law of Ukraine "On Public Procurement" (hereinafter referred to as the Law), as well as complaints related to an abnormally low price.

The decision on the complaint regarding the lack of certificates from the Ministry of Internal Affairs and the State Tax Service

Procurement ID: UA-2022-03-02-000624-c

Decision No. 4156-р/пк-пз dated 04/28/2022

From the beginning of the war until mid-April, there was a problem associated with the impossibility of obtaining a certificate from the Ministry of Internal Affairs in the absence of a criminal record, as well as a certificate from the State Tax Service in the absence of debt. In this purchase, the customer just rejected the proposal of the winner due to the lack of the above documents.

The complainant referred to the impossibility of timely submission of such documents in connection with Russia's military aggression against Ukraine, in particular, due to frequent shelling of the Sinelnikovsky district of the Dnipropetrovsk region and the periodic absence of the Internet. The complainant also noted the impossibility of obtaining a certificate from the State Tax Service due to the incorrect work of the “Cabinet of Taxpayers”, which is why it was possible to obtain the relevant certificate only on April 12 (the date of rejection of the proposal is April 6) – he also submitted it for consideration by the board.

The complainant also said that part 1 of the Resolution of the Cabinet of Ministers of Ukraine No. 165 of February 28, 2022 "Some issues of the implementation of the rights, freedoms and legitimate interests of individuals and legal entities" indicated to stop the terms for the provision of administrative services by the subjects of their provision and the issuance of permits by licensing authorities during martial law in Ukraine. Providing a certificate of non-conviction is an administrative service, therefore, it is impossible to obtain it under martial law.

The decision of the AMCU board: as expected, the AMCU board did not take into account the circumstances in the country in this situation, therefore, it confirmed the legitimacy of the customer’s decision regarding the rejection of the winner’s proposal due to the failure to provide a certificate from the Ministry of Internal Affairs on the absence of a criminal record, as well as a certificate from the State Tax Service on the absence of debt by the conditions, specified in the tender documents.

The decision on the complaint regarding the confirmation of the absence of grounds, defined by Art. 17 Law

Procurement ID: UA-2021-12-29-008480-c

Decision No. 4108-р/пк-пз dated 04/27/2022

The tender documentation establishes the requirement of documentary evidence, which must be provided by the winner to confirm the absence of the grounds specified in parts 1 and 2 of Article 17 of the Law. At the same time, the certificates provided by the winner did not contain confirmation of the absence of the grounds specified in paragraphs 1, 4, 7, 8, 9, 10, 11 of the first part of Article 17 of the Law, as a result of which the customer rejected the winner's proposal.

The decision of the AMCU board: despite the complainant's explanation that he confirmed the absence of the main grounds under Part 1 of Art. 17, determined by the Law, the AMCU collegium agreed with the legitimacy of the customer's actions. She noted that according to the terms of the documentation determined by the organizer of the auction, the winner had to confirm the absence of the grounds specified in part 1 of article 17 of the Law for each paragraph of this part, and not only for paragraphs 2, 3, 5, 6, 12, 13.

The decision on the complaint regarding the justification of the abnormally low price

Purchase ID: UA-2022-01-11-001071-a (Lot No. 2)

Decision No. 4153-р/пк-пз dated 04/28/2022

The customer rejected the complainant's proposal because the participant did not justify the abnormally low price (hereinafter referred to as ALP). On 02/02/2022, the electronic procurement system automatically calculated the complainant's proposals to the ALP, due to which the latter had to upload the ALP justification before 02/04/2022 00:00. The complainant uploaded the relevant justification on 02/03/2022 at 17:54, after which he was selected by the customer as the winner of the auction.

On 02/07/2022, for unknown reasons, the customer returned the complainant for evaluation, due to which a repeated notification appeared in the electronic procurement system that the participant's tender offer had signs of ALP, as a result of which the participant had to provide a rationale for his price offer before 02/09/2022 00:00. The complainant did not provide a second explanation of the reasons for the ALP, as a result of which the client rejected his offer.

The decision of the AMCU Collegium: the collegium did not support the decision of the customer, given that the complainant provided the rationale for the ALP before 02/04/2022 at 00:00. Thus, the board answered the question: what will happen if the electronic procurement system repeatedly requires the participant to provide a rationale for the ALP, but he does not provide it. The answer is that the landmark is based on the first event, that is, on the first message about the need to justify the ALP.

The decision on a complaint regarding premature rejection due to abnormally low price

Procurement ID: UA-2022-01-05-005717-c

Decision No. 4033-р/пк-пз dated 04/22/2022

In this procurement, the customer also decided to reject the proposal of the participant due to the failure to justify the ALP as part of the proposal. But there is one feature: it was an open auction with publication in English, and the customer decided to reject the proposal even before the auction.

The decision of the AMCU Collegium: the price of the complainant's offer was not determined by the electronic procurement system as abnormally low, and therefore the complainant was not supposed to provide a price justification as part of the offer. Thus, the customer's decision is invalid.

We remind you that according to paragraph 3 of part one of Article 1 of the Law, an abnormally low price is determined by the electronic procurement system, and not by the customer or another person.

Conclusion on the considered solutions

As you can see, the Antimonopoly Committee of Ukraine once again emphasizes the priority of the requirements of the tender documentation – they will play a key role, no matter what events take place in the country.

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