Prozorro Legal Advisers

Legal Advisers of SmartTender platform monitor all changes in public procurement legislation daily and communicate with suppliers, providing them with advice and other professional assistance. But this time they decided to prepare the material with answers to the most interesting and common questions of customers. Perhaps among them, you will find what you have long wanted to know yourself.

Question №1: Papers and Electronic System

Does the customer have the right to demand from the winner documents in paper form according to Art. 17, constituent documents and the original tender offer?

According to Part 6 of Art. 17 of the Law of Ukraine "On Public Procurement" (hereinafter - the Law) the winner of the procurement procedure within a period not exceeding ten days from the date of publication in the electronic procurement system notice of intent to enter into a procurement contract, must provide the customer with documents by publishing them in the electronic procurement system, confirming the absence of the grounds specified in paragraphs 2, 3, 5, 6, 8, 12 and 13 of part one and part two of this article.

According to Part 8 of Art. 12 of the Law, the submission of information during the procurement procedure/simplified procurement is carried out electronically through the electronic procurement system. Customers prohibited require participants filing in paper form information submitted by them during the purchase procedure/simplified procurement.

So, analyzing the above rules, we can draw the following conclusions:

- the winner provides information under Art. 17 by publishing them in the electronic procurement system;
- given Part 8 of Art. 12 – we do not recommend requiring the winner to submit those documents that were submitted by him as part of the proposal and uploaded to the electronic procurement system.

Besides, we recommend that customers move away from the practice of requesting paper documents and use electronic document management.

Question №2: Uploading Documents After the Bidding

How to send a complaint or disagreement with the determination of the winner after the early bidding or after the tender? Is it possible to download documents after the tender or after the tender and in what terms?

First, by paragraph 2 part 8 Article 18 of the Law, complaints concerning decisions, actions or inaction of the customer, which occurred after the evaluation of tenders of bidders, are filed within ten days from the date when the appellant learned or should have learned about the violation of their rights due to the decision, action or inaction of the customer, but before the date of conclusion of the procurement contract.

The complaint is submitted on the page of the auction in which you participate. After filing a complaint, you must pay the cost by choosing one of two methods: a bank card or a bank account.

Warning! Never postpone the filing of a complaint until the last day, because according to Resolution № 292 of April 22, 2020 “On establishing the amount of the fee for filing a complaint and approving the Procedure for making a fee for filing a complaint to the appellate body through the electronic procurement system and its return to the appellant» to file a complaint to the register and form its registration card when submitting to the appellate body through the electronic procurement system and making a payment, the appellant must take into account the terms of interbank transfers established by law.

Following Part 10 of Art. 18 of the Law, complaints about concluded procurement contracts and their invalidity by this Law, including claims for damages to the subject of appeal due to violation of this Law, are considered in court.

Second, the tenderer corrects inconsistencies in the information and/or documents submitted by him in his tender, identified by the customer after the opening of tenders, by downloading through the electronic procurement system updated or new documents in the electronic procurement system within 24 hours. placement by the customer in the electronic procurement system of a notice with a request to eliminate such discrepancies.

Thus, it is allowed to correct only documents according to Art. 16 of the Law (qualification criteria) and documents confirming the right to sign the tender offer and/or procurement contract.

Question №3: The Anticipation of Bidding Cancellation

How to find out before the bid is submitted that the announced procurement takes place without violating the Law, it is possible to participate in it, and in case of monitoring, it will not be canceled?

At present, the electronic procurement system has not developed algorithms to understand whether the tender documentation has been prepared by the law or not, or whether the procurement procedure is carried out without violating the Law. Violations are usually detected (or maybe detected) in two cases: if the risk indicator in the auditors' office is triggered or the auditors independently check the procedures for compliance with the law.

Therefore, the only advice so far is an independent analysis of the procurement and (in case of discrepancies) addressing questions and requirements to the organizer, which will reduce the risk of monitoring and potential cancellation of Prozorro bidding in the future.

Question №4: Correct in 24 Hours

Why the legislator has adopted such a rule as the correction of errors within 24 hours. The customer did what he wanted, and now he will tell you what to fix.

The norm of correcting errors within 24 hours has existed since May 12, 2016, and is provided by the Law of Ukraine "On the peculiarities of procurement of goods, works, and services to ensure the needs of defense." As practice has shown, the opportunity to correct mistakes within 24 hours is used by many suppliers and future winners. Therefore, this opportunity, albeit with restrictions on documents that can be corrected, was implemented in the new version of the Law.

Also, there is another side to the question – the additional opportunity to correct mistakes applies to all participants, not just those whom the customer wants to see as a winner. And in case the customer does not provide an opportunity to eliminate the discrepancies, the participants always have the opportunity to file a complaint to the AMC.

Question №5: Appeal in the Simplified Procurement

How to appeal the rejection of the offer due to the discrepancy of the provided product samples in the simplified procurement?

By Part 20 of Art. 14 of the Law to protect their rights and interests protected by law, the participant of the simplified procurement may apply to the customer and/or to the body exercising control over the customer, or to the court. Decisions and actions of the customer can be appealed by the participant of the simplified procurement in court.

Given the above, in a simplified procurement, it is possible to appeal the rejection of the offer due to non-compliance, in particular non-compliance with the provided product samples, by writing a request to the customer and/or to the body supervising the customer or in court.

It should also be noted that since simplified procurement is not a procurement procedure under Art. 13 of the Law, the appeal of the decision of the Customer to the Antimonopoly Committee of Ukraine is not provided.

If you do not agree with the decision or inaction of the Customer, the lawyers of the SmartTender site will help to write a claim or complaint to protect your legal rights.

Question №6: References Under Item 12 Part 1 of Art. 17

As the winner of the procurement must confirm the absence of the grounds specified in paragraph 12 of Part 1 of Art. 17 of the Law of Ukraine "On Public Procurement"? Which body issues the relevant certificates?

According to Art. 17 of the Law, the customer decides to refuse the bidder to participate in the procurement and is obliged to reject the bidder's bid or refuse to participate in the negotiated procurement procedure (except as provided in paragraphs 2, 4, 5 of the second article 40 of this Law), if the official (official) of the participant of the procurement procedure, who is authorized by the participant to represent his interests during the procurement procedure, the natural person who is a participant, was brought to justice for committing an offense related to child labor or any -what forms of human trafficking.

There is currently no in Ukraine missing body that issues relevant certificates that an official (official) to a participant or a natural person who is a participant has been or has not been prosecuted under the law for committing an offense related to the use of child labor or any -what forms of human trafficking.

Also, there is currently no state open register with information on persons prosecuted under the law for the commission of child labor offenses. Regarding the register of crimes of human trafficking - such a register exists and is approved by the Resolution of the Cabinet of Ministers "On approval of the Regulations on the establishment and operation of the Unified State Register of Crimes of Trafficking in Human Beings" of April 18, 2012, № 303.

Currently, there are two practical methods of confirming the absence of facts of involvement in the above violations, which may vary depending on the terms of the tender documents: a

- certificate in any form that the official (official) of the bidder authorized by the bidder to represent his interests during the procedure procurement, an individual who is a participant has not been prosecuted under the law for committing an offense related to the use of child labor or any form of trafficking in human beings;
- certificate from the Ministry of Internal Affairs of prosecution/non-prosecution, absence/presence of criminal record.

Given that offenses related to the use of child labor or any form of trafficking in human beings are criminal offenses (Article 149 and Article 150 of the Criminal Code of Ukraine), a certificate from the Ministry of Internal Affairs on the absence of criminal prosecution and no criminal record automatically confirms the absence of prosecution for an offense related to the use of child labor or any form of human trafficking.

Question №7: Renewal of the Price Offer After the Auction

The customer in the tender documentation requires to provide an updated price offer after the auction. How legal is it?

This requirement does not comply with any provisions of the Law and currently, the bidder does not have the technical ability to upload documents after the auction and until the need to eliminate discrepancies within 24 hours from the date of publication of the notice from the customer (or the winner).

The Prozorro system has restrictions on the download of any documents by the bidder after the auction, but until the winner of the procurement procedure is determined. In this case, the participant has the opportunity to use the rule, which provides 24 hours to correct errors.

And the winner, as before, according to Article 17 of the Law has the opportunity to download documents confirming the absence of grounds for a refusal to participate after determining the winner and notification of intention to enter into a contract.

Question №8: Who Commands an Abnormally Low Price

Who knows the price as abnormally low? Customer?

No, technically the customer does not have the authority and mechanisms to determine the abnormally low price of the tender offer (ANC).

According to the Law, the electronic procurement system calculates the ANC automatically based on the results of the auction, informs the participant of the procurement procedure and the customer. ANC is not defined in simplified procurement.

As of June 15, 2020, the public procurement system has not completed the implementation of technical functionality to implement this provision of the Law, so follow the news on the official website of Prozorro.

Question №9: When Will the Prozorro Market Come Out 100% Possible

Prozorro Market does not have a section "Flowers" and other popular product categories! When will they appear?

For the full launch of Prozorro Market, the Cabinet of Ministers needs to adopt a resolution that will allow state customers to use the Prozorro Market functionality in purchases of up to UAH 200,000 (and for individual customers that are monopolists in their field - up to UAH 1 million).

The Ministry of Economic Development, Trade and Agriculture of Ukraine has published a draft Resolution "On approval of the procedure for the formation and use of electronic catalog". This resolution will establish the rules of operation of the state online store Prozorro Market.

Today we expect the adoption of this document and the full launch of the electronic catalog Prozorro Market, which will allow businesses to expand the market for their products, and customers – will provide a convenient tool for procurement for sub-threshold amounts.

Question №10: Confidential Information in the Contract

Is it possible to hide a similar contract as confidential due to the availability of personal data of the counterparty?

According to Art. 31 of the Law, the customer rejects the tender proposal indicating the arguments in the electronic procurement system if the participant of the procurement procedure identified confidential information that cannot be defined as confidential by the requirements of part two of Article 28 of this Law.

By Part 2 of Art. 28 of the Law, is not subject to disclosure of information that is reasonably identified by the participant as confidential, including - containing personal data. Information on them may not be defined as confidential. proposed price, other evaluation criteria, technical conditions, technical specifications and documents confirming compliance with the qualification criteria by Article 16 of this Law, and documents confirming the absence of the grounds established by Article 17 of this Law.

Since the provision of a similar agreement provides for Art. 16 of the Law, this document cannot be defined by the participant as confidential.

For its part, the tender documentation is important first of all, in which the customer can provide the bidder with the opportunity to edit (edit, sketch, shade) the personal data of third parties, which are available in the tender documents.

Therefore, the participant may submit an edited similar agreement with the concealment of personal data of the counterparty (only if the customer provides for such an opportunity), without specifying it as a confidential document.