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In the previous part of the review of the AMCU practice, SmartTender lawyers analyzed the decisions of the collegium for the second half of April 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.

In this part of the material, lawyers will consider decisions on complaints regarding the terms of the tender documentation (hereinafter - TD) and decisions of customers related to the nuances of ISO certificates.

Appeal against the requirement for confirmation of experience in the implementation of similar contracts

Purchasing ID: UA-2022-02-08-002275-b

Decision No. 4083-р/пк-пз dated 04/26/2022

The complainant noted that the requirement to confirm the experience of executing similar contracts during the last calendar year (2021) is discriminatory, as it makes it impossible for business entities with experience in executing similar contracts in the current year to participate in the procurement.

The complainant added that he did not have documented experience in the implementation of similar contracts over the past year, since he began his activities as an individual entrepreneur only on December 6, 2021, which is confirmed by a copy of the extract from the USR, and for the period from December 6, 2021, to December 31, 2021, he did not manage to conclude and fulfill an agreement similar to the subject of the purchase.

Of all the evidence uploaded by the complainant, only an extract from the Unified State Register was submitted for consideration by the board.

The decision of the Antimonopoly Committee of Ukraine: although the customer noted that the relevant changes to the text of the TD will be made shortly, the collegium decided that the complainant did not prove and documented the need to make changes to the TD in this part, and also did not document how it was given above the demand violates his rights and legitimate interests related to participation in the procurement.

After analyzing the above decision, we can conclude that the complainant made a serious mistake: while challenging the impossibility to confirm the experience in the implementation of a similar agreement for 2021, he did not confirm the existence of such experience in the current year (2022), which he reported at the beginning of his complaint.

It can be assumed that if a copy of such an agreement is provided with the complaint, the board could probably decide in favor of the complainant.

In connection with the above, we remind you that starting from June 2021, after the entry into force of Law No. 1530-IX of 06/03/2021, the mandatory requirements of a complaint when appealing the conditions of a TD is a list of documents (evidence) confirming that the complainant has violated rights and legally protected interests, as well as that such documentary evidence (evidence), must be uploaded with the complaint.

It should be emphasized that while working on this material, SmartTender's lawyers faced dozens of decisions where the board left without consideration or terminated the consideration of the complaint due to the lack of the above evidence.

Appeal against a requirement for a certificate under an obsolete standard

Procurement ID: UA-2021-12-28-007121-b

Decision No. 3927-р/пк-пз dated 04/19/2022

According to the requirements of the TD, participants are required to provide, as part of their proposal, documentary evidence of successful certification of their activities by DSTU ISO 22000:2007 “Food Safety Management Systems. Requirements for any organizations of the food chain or other similar state standards in the field of certification of the enterprise. To do this, a certificate issued in the name of the procurement participant must be provided.

The complainant noted that by the order of the State Enterprise "UkrNDNC" dated October 31, 2019 No. 340, the national standards DSTU ISO 22000:2007 (ISO 22000:2005, IDT) were canceled and new national standards were adopted - DSTU ISO2 2018, IDT). In this regard, the above conditions of the TD are not consistent with the requirements of the legislation in this part.

The decision of the Antimonopoly Committee of Ukraine: the collegium recognized as unlawful the requirements for participants to provide documents with links to an outdated and no longer valid regulatory framework. The customer was obliged to eliminate these inconsistencies by making appropriate changes to the TD in this part.

Recall that, according to part 3 of article 22 of the Law, the TD may contain other information, the requirements for which are provided for by law and which the customer considers necessary to include in the TD.

Appeal of the customer's decision related to the nuances of ISO certificates: lack of DSTU mark

Procurement ID: UA-2021-12-22-010261-c

Decision No. 3992-р/пк-пз dated 04/21/2022

The complainant noted that the winner's proposal contained an ISO 37001:2016 certificate. Since this certificate is provided without the DSTU mark, it is international and does not meet state standards, which is contrary to the terms of the TD.

The customer replied that the details of this certificate contained information on the procedure for its verification in the international register: www.irqao.com, which confirms the information established by the above requirements, and the validity of which is confirmed by the available seals and marks of international registers. Also, in this case, the certificate corresponds similarly to the implemented DSTU by the Law of Ukraine "On Standardization".

At the same time, the terms of the TD require documentary confirmation of certification by an authorized organization of compliance with DSTU ISO 37001:2016 “Anti-Corruption Management Systems. Requirements and instructions for use.

The decision of the AMCU board: despite the presence of the ISO 37001:2016 certificate as part of the winner’s proposal and the fact that the difference in the certificate was only in the absence of the phrase “DSTU”, the board sided with the complainant and confirmed that the winner’s proposal did not contain documentary evidence of certification authorized organization for compliance with DSTU ISO 37001:2016.

Appeal against the customer's decision related to the nuances of ISO certificates: confirmation through the registry

Procurement ID: UA-2021-12-31-000304-a

Decision No. 4078-р/пк-пз dated 04/26/2022

The complainant noted that as part of the proposal, the winner provided a DSTU ISO/IEC 27001:2015 certificate. This certificate states that it is only valid when certified by a registry listed in the International Register of Quality Evaluators: www.irqao.com.

At the same time, if you follow the link to this site and indicate the registration number of this certificate in the “Search” column, the following information appears: “A certificate ISO 27001:2013 was registered under this number”, and not a certificate DSTU ISO / IEC 27001:2015, which does not meet the requirements of the TD.

The customer considered that the DSTU ISO/IEC 27001:2015 certificate provided by the participant is valid until 11/19/2023. Consequently, the customer, evaluating the proposal, had every reason to believe that this certificate was issued and exists, and the tender proposal complies with the requirements of the TD.

The decision of the Antimonopoly Committee of Ukraine: even though the TD did not contain separate requirements for confirming the above document by checking the relevant registers, the collegium sided with the complainant and, having checked the register at the link www.irqao.com, found that the registration number of the document contains the certificate "ISO / IEC 27001:2013 Lvivenergozbut LLC, Ukraine, Lviv”. At the same time, the TD requires the provision of a valid certificate specifically DSTU ISO / IEC 27001:2015. In this regard, the Board decided that the winner does not meet the requirements for a participant established by paragraph 1 of part 3 of Article 22 of the Law for a participant by the law.

Conclusion on the considered solutions

Analyzing the above two solutions, we recommend participants and customers pay attention to the wording of the requirements for certificates. This includes determining whether the TD requires simply ISO or DSTU ISO, as well as focusing on the year of the standard for which the certificate should be issued: 2013, 2015, 2018, etc.

Summing up all of the above, one can be sure that the AMCU has fully resumed its work and, despite the current martial law in the country, carefully considers complaints by the norms of the Law and the terms of the documentation.

In the next, third and last, part of the material on the analysis of the decisions of the AMCU Board for the second half of April, we will consider decisions, in particular, regarding bank references and securing a tender offer.

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