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On April 19, the AMCU Board announced one of the first decisions made during martial law, on April 19, 2022. It concerns the application to participate in the consideration of the complaint through the use of telecommunication systems in interactive real-time. In this article, we offer details of the consideration of this decision, and advice from SmartTender lawyers on the correct submission of such an application.

On April 14, the Antimonopoly Committee of Ukraine announced the resumption of consideration of complaints by the Permanent Administrative Board of the AMCU, and on April 1, 2022 began to publish decisions taken before martial law (read the news).

More About the Decision

The peculiarity of the decision of 19.04.2022 No. 20-29/05-1016-пз (UA-2022-01-20-014882-b) is that it concerns an unusual consideration of the legality of rejecting / determining the winner of the procurement procedure, canceling such a procurement or conditions of the tender documentation The published decision concerns the consideration of the customer's application for participation in the consideration of the complaint through the use of telecommunication systems in an interactive real-time mode (hereinafter referred to as the consideration of the complaint through telecommunication systems).

According to the text of the decision, the customer added a separate statement to the explanation on the merits of the complaint, where he announced his desire to take part in the meeting of the Commission for consideration of complaints about violations of legislation in the field of public procurement, referring to Part 15 of Article 18 of the Law of Ukraine "On Public Procurement" (hereinafter – the Law). He also wanted to involve another participant in the procurement procedure, the decision of the customer on which was appealed, to the meeting.

The Board decided to refuse to satisfy the customer's application in full and indicated the following inconsistencies (according to the Procedure for the participation of the subject of the appeal and the customer in considering a complaint through the use of telecommunication systems in interactive real-time mode, approved by the Order of the Antimonopoly Committee of Ukraine dated 09.02.2021 No. 3-рп (hereinafter referred to as the Procedure)) :

- the customer submitted an application in violation of the deadlines specified in clause 2 of the Procedure;
- the customer did not indicate the name of the territorial office where he needs to ensure participation in the Board meeting;
- Procedure provides for the right to participate in the review meeting through telecommunication systems of the subject of the appeal and the customer.

In view of the foregoing, we suggest that you familiarize yourself with the rules of the Procedure in more detail and highlight the most important requirements that must be taken into account when submitting the above application.

Procedure for participation of the subject of the complaint and the customer in the consideration of the complaint through telecommunication systems

Part 5 of Art. 18 of the Law stipulates that if the subject of the complaint intends to participate in the complaint through telecommunications systems, together with the complaint he submits to the AMCU a statement in the form of an electronic document by downloading it through the electronic procurement system within the deadline for filing a complaint.

Also in accordance with Part 15 of Art. 18 of the Law at the prior written request of one of the parties specified in the complaint (for the complainant) or explanation (for the customer), the parties (the subject of the complaint and the customer) are invited to the meeting of the Commission for Reviewing Complaints of Violations of Public Procurement etc. under consideration.

However, the Law does not contain requirements for such a statement.

Rules for submitting an application for consideration of a complaint through telecommunication systems: adhere to the deadlines

To avoid refusing to consider the complaint by using telecommunications systems in interactive real-time, we recommend that when submitting such an application to take into account the provisions of the Procedure.

The first thing to pay attention to when submitting such an application is the time frame within which it must be submitted to the appellate body. According to the requirements of the Procedure, there are two options, depending on who is applying:

1. The application of the subject of appeal to participate in the complaint through telecommunication systems is submitted together with the complaint to the appeal body in the form of an electronic document by downloading it through the electronic procurement system within the period established by Article 18 of the Law for filing a complaint;
2. The customer's application for participation in the complaint through telecommunications systems is submitted to the appellate body by publishing it through the electronic procurement system within one working day from the date of the complaint by the electronic procurement system in the register (paragraph 2 of Section II of the Procedure).

If such an application is submitted in other terms, the AMCU will establish that the complainant's / customer's application was submitted in violation of the deadlines specified in paragraph 1 or 2 of the Procedure and will refuse to satisfy the application for consideration of the complaint through telecommunications systems. Clause 5 of Section II of the Procedure.

Please note the conflict between the Law and the Procedure for filing an application for participation in the complaint through telecommunication systems

In accordance with Part 15 of Art. 18 of the Law, another participant in the procurement procedure (if the decision of the customer made on his tender proposal is appealed) has the right to participate in such consideration of the complaint through telecommunications systems.

However, the Procedure does not provide for the possibility of submitting such an application to another participant in the procurement procedure, but only to the subject of appeal and the customer.

Rules for submitting an application for consideration of a complaint through telecommunication systems: name of the AMCU branch

The second important element of the application for consideration of the complaint by using telecommunication systems in interactive real-time is its mandatory details, which are also specified in the Procedure.

Thus, in accordance with paragraph 3 of Section II of the Procedure, the statement of the complainant and/or the customer must indicate the name of the territorial branch of the AMCU, which must ensure the applicant's participation in the Board meeting.

There are no other requirements and / or mandatory details for such an application.

In view of the above, if you want to take advantage of the opportunity to review through telecommunications systems, make an application in any form, but be sure to indicate in the application the territorial branch of the AMCU, which you want to participate online.

In the absence of this information in the application, the AMC will establish that the name of the territorial office in which the applicant must participate in the Board is missing, and you will be denied a complaint about the complaint through telecommunications systems.

Additionally, we would like to draw attention to the following provisions of the Procedure:

- the subject of the appeal and the customer may simultaneously participate in the meeting of the Board to consider the complaint through telecommunications systems in the premises of different territorial branches of the Committee (paragraph 3 of Section III of the Procedure);
- non-arrival of a person at the territorial branch of the Committee on the day and time specified in the decision of the Board to accept the appeal for consideration to participate in the Board meeting by using telecommunications systems in real time does not preclude consideration of the complaint (paragraph 6 of Section III of the Procedure);
- in case of postponement of the date of consideration of the appeal or postponement of its consideration by the Board, the subject of the appeal and / or the customer shall continue to participate in the consideration of the complaint through telecommunication systems by the Board and the application for such participation shall not be re-submitted (paragraph 7 of Section III of the Order).

Let's summarize

Given the fact that the AMCU Board has resumed work on complaints, and the country is under martial law, we recommend that you consider participating in the review by using telecommunications systems in real-time interactive mode. Keep this in mind the next time you file a complaint (as a participant) or provide an explanation (as a customer).

It should also be noted that as early as April 20, 2022, in the electronic procurement system, the Board began to publish other decisions on complaints, the meetings of which took place starting from April 19.

In this regard, SmartTender lawyers start a regular column to review and analyze the decisions of the AMCU board made during martial law. Its main goal is to identify new trends, changes and novelties in the practice of the AMCU, which may arise under the influence of the war in the country.

We recommend that you follow our news to keep abreast of current AMCU practice.