SmartTender Legal Advisers

The institute for requirements and appeals to the customer filing is a popular but underestimated tool. Popular – because it is a quick, free way to protect your rights and force the customer to perform certain actions. Unappreciated – because not everyone uses this tool, although it should be worth it. In this article, the legal adviser of the SmartTender.biz – Anastasiia Koretska – will tell you in which cases the requirements should be submitted and in which cases they will be most effective.

When Can You Apply?

Today you have several opportunities to exercise the right to file a claim with a customer. For example, at the stage of clarifications, you, free of charge, within the time frames stipulated by the Law "On Public Procurement" (hereinafter – the Law), can require the customer to amend the conditions if you find inconsistencies that contradict the legislation, technical errors, discriminatory requirements or other moments in the text of the tender documents that you consider objectively wrong. You can also request at the qualification stage if you see a violation of your rights or the norms of the Law on the part of the customer, in case of your disqualification or election of a participant as a winner who does not meet the conditions of the purchase.

SmartTender Legal Advisers

How to Submit a Claim?

If you want to increase the chances that a customer will fulfill your requirement, follow these simple rules:

- formulate the requirement in as much detail as possible;
- refer to the norms of the Law as much as possible;
- add documents to support your claims.

Remember that if you submit requests or questions at the bidding stage, the system automatically freezes the purchase until the customer corrects the inconsistencies or provides an explanation why he cannot do this. Accordingly, the duration of the purchase can be increased, and the auction can be postponed, about which a corresponding message will appear in the system.

How and When the Customer Is Obliged to Answer You?

The customer must answer your claim within the following time:

1. Open bidding – within 3 working days (by part 1 of article 24 of the Law).
2. Simplified purchases – within 1 working day (paragraph 3 of part 7 of article 14 of the Law);
3. Pre-threshold purchases – until the deadline for the clarification period (paragraph 3 of part 7 of article 14 of the Law).

According to the Law, the customer can act as follows:

- reject the claim;
- do not satisfy the claim;
- satisfy the claim.

Unfortunately, the Law obliges the customer only to give you an answer but does not in any way regulate the form in which it will be given. Also, remember that after the completion of the clarification stage, the customer is obliged to respond only to the participant's demands to provide arguments regarding his disqualification (part 4 of article 14 and part 3 of article 31 of the Law). Therefore, it is common practice for the organizer to ignore the requirements for any other issues. In such cases, it is better to give preference to the complaint.

What to File: a Claim or a Complaint?

You have already understood that the tool for claiming at the stage of clarification and submission of proposals will help you to force the customer to bring the terms of the tender documents by the Law. But in the stages of prequalification, qualification, or the winner selection, the claim is not the only instrument of influence. Moreover, at these stages, the appeal procedure in the AMCU is much more effective – in fact, it is the only means of 100% influence on violating customers. It has its deadlines, so if you are distracted by filing a request, you risk missing out on a chance for a successful appeal.

If you are confident that you are right, I recommend filing a complaint with the AMCU as soon as you have fixed the fact of a violation at one of the listed stages, without waiting for the completion of the purchase. Just in case, you can contact the lawyers of the SmartTender.biz to make sure that your complaint has a high chance of winning. To do this, order legal advice directly on the page of the selected tender.

Follow the rules listed in this article and increase your chances of winning with SmartTender!