Prozorro

SmartTender lawyers have compiled for you a list of the most frequently asked questions in the field of public procurement over the past two weeks and provided answers to them with reference to official sources of information.

1. What to do with purchases announced before the start of martial law (02/24/2022)?

First of all, attention should be paid to the clarification of the relevant authorities. According to the letter of the Ministry of Economy No. 3304-04_9225-06 dated 03/04/2022 (download the letter), procurement procedures and simplified procurement initiated before the introduction of the legal regime of martial law in Ukraine are completed in the manner prescribed by the Law.

At the same time, according to the letter of the State Treasury Service of Ukraine No. 18-07-08/4497 dated 03/07/2022 (page 1 and page 2 of the letter), procurement procedures, simplified procurement initiated before the introduction of the legal regime of martial law in Ukraine, by decision of the head, when there is a need for the relevant goods, works and services, are completed in the manner prescribed by the Law of Ukraine "On Public Procurement" (hereinafter referred to as the Law), or are recognized as invalid/cancelled.

Taking into account the above, and that the Resolution of the Cabinet of Ministers No. 169 of February 28, 2022, as amended by the Resolution of the Cabinet of Ministers of Ukraine No. 201 of March 5, 2022, does not contain information and norms on this issue, purchases started before February 24, 2022 must be completed in the standard manner, provided by the Law. At the same time, such purchases may be canceled in the manner prescribed by the Law. If the customer has an urgent need to obtain the necessary goods/works/services, use the procurement mechanism through the conclusion of a direct contract with the participant by the Resolution of the Cabinet of Ministers No. 169 of February 28, 2022, as amended by the Resolution of the Cabinet of Ministers of Ukraine No. 201 of March 5, 2022.

Additionally, we draw the attention of customers that, in accordance with clause 1, part 5, Art. 32 of the Law, the customer has the right to declare the tender void if the procurement has become impossible due to force majeure. In this case, the Decrees of the President of Ukraine dated February 23, 2022 No. 64/2022 “On the introduction of martial law in Ukraine” (link to the document) and on February 23, 2022 No. 63/2022 “On the introduction of a state of emergency in certain regions of Ukraine” (link to the document), as well as the Letter of the Chamber of Commerce and Industry of Ukraine on force majeure certificate No. 2024/02.0-7.1 dated 02/28/2022 (read).

2. Does the Resolution of the Cabinet of Ministers No. 169 of February 28, 2022, as amended on March 5, 2022, apply to all customers?

By Resolution of the Cabinet of Ministers No. 201 dated March 5, 2022, amendments were made to paragraph 1 of the Resolution of the Cabinet of Ministers No. 169 dated February 28, 2022. In accordance with it, subparagraph 2 is worded as follows: the lists and volumes of purchases of goods, works and services are determined by the decisions of customers/state customers making such purchases.

Given the above, all business entities that are customers in the understanding of the Law of Ukraine "On Public Procurement" and state customers in the understanding of the Law of Ukraine "On Defense Procurement" can carry out purchases by applying the Decree of the Cabinet of Ministers No. 169. The customer determines the list and volumes of such purchases independently, and such purchases are not included in the annual procurement plan.

3. Does the Resolution of the Cabinet of Ministers No. 169 of February 28, 2022, as amended on March 5, 2022, apply to all types of procurement? Does the decree apply to purchases up to UAH 50,000?

Resolution of the Cabinet of Ministers No. 169 stipulates that defense and public procurement of goods, works and services are carried out without the use of procurement procedures and simplified procurement defined by the Law of Ukraine "On Public Procurement" (hereinafter referred to as the Law).

Considering the above, the terms of Decree No. 169 refer exclusively to procurement procedures and simplified procurement and do not apply to procurements up to UAH 50,000.

The Ministry of Economy also adheres to this position. In a letter dated 03/09/2022 No. 3304-04/9472-06 “On changes made to the procurement procedure during martial law” (download letter), the Ministry reported that Decree No. 169 establishes the rule of non-application of procurement procedures and simplified procurement and procurement, which, in accordance with the Law, must be carried out through procurement/simplified procurement procedures, that is, procurement whose value is equal to or exceeds UAH 50,000.

Given the above, when making purchases of goods, works and services, the cost of which does not exceed UAH 50,000, the customer must comply with the principles of public procurement and may use the electronic procurement system, including electronic catalogs for the purchase of goods. In the case of such procurement without using the electronic procurement system, the customer must publish in the electronic procurement system in accordance with Article 10 of the Law a report on the public contract concluded without using the electronic procurement system in accordance with part three of Article 3 of the Law.

Given the above, purchases worth up to UAH 50,000 are made by customers by concluding a direct contract with the publication of an appropriate report in the system and/or by using the Prozorro Market electronic catalog.

4. What are the deadlines for publishing a report on a procurement contract concluded without using the electronic procurement system during martial law?

If the customer conducts procurement in accordance with Decree No. 169 of 02/28/2022, as amended on 03/05/2022, then they shall publish a report on the procurement contract concluded without using the electronic procurement system, the procurement contract and all annexes to it no later than 20 days from day of termination or cancellation of martial law in Ukraine or its individual areas. And although the Decree does not directly prohibit the publication of the relevant report and agreement immediately after its conclusion, we advise customers to publish relevant information precisely after the termination or cancellation of martial law in Ukraine or in certain areas, so as not to show the enemy their internal needs.

In the event that a purchase is made up to UAH 50,000, the report on the purchase agreement, concluded without using the electronic procurement system, is made public within three working days from the date of conclusion of the purchase agreement in accordance with Art. 10 of the Law on Public Procurement.

5. What should be the validity period of the contract if it is concluded in accordance with the Decree of the Cabinet of Ministers No. 169 of 02/28/2022?

The key thing to remember here is that the key requirement is a short-term requirement that the supplier needs to close immediately, within a few days or weeks, and not in a month or a quarter. The option to specify the validity period of the agreement may be as follows: “This agreement is valid from the date of its conclusion and until the end of martial law, declared by Decree of the President of Ukraine dated February 24, 2022 No. 64 “On the introduction of martial law in Ukraine”, but no later than December 31, 2022, and in terms of payment for the delivered goods - until the parties fully fulfill their obligations.

6. Is it possible to file complaints with the Complaints Body (AMCU) in procurement procedures during martial law?

On March 3, 2022, the Antimonopoly Committee of Ukraine announced on its official Facebook page that such actions were suspended until martial law will be ended or lifted:

1. Consideration of complaints about violations of legislation in the field of public procurement submitted to the Committee as an appeal body, decisions on which have not been taken as of February 25, 2022.
2. Placement in the electronic system of decisions regarding complaints about violations of legislation in the field of public procurement submitted to the Committee as an appeal body, information about which was not posted in the electronic procurement system as of February 25, 2022.

This applies to:

- decisions to accept the complaint for consideration;
- decisions to leave the complaint without consideration;
- decisions based on the results of consideration of the complaint;
- information about the operative part of the decision based on the results of the consideration of the complaint.

You can read the expanded order of the Antimonopoly Committee of Ukraine here.

According to the information available in the BI Prozorro analytics module, the last day on which the Appellate Authority has published any of its decisions is 02/24/2022. As of March 11, 2022, the AMCU website does not work at all.

Thus, for the period of martial law, a situation has arisen in which participants in public procurement technically have the opportunity to file complaints through electronic platforms, while the Appeals Authority will not accept them for consideration until martial law in Ukraine ends.

We call on all participants in public procurement for the period of martial law not to abuse the technical possibility of filing complaints and not to block any bidding. This will lead to the impossibility of their extension in the future, and consequently, the impossibility of the customer to complete the procedure and conclude an agreement in the manner prescribed by law, as a result - non-receipt of goods/services/work at this important time for the country.

7. Are there any monitoring of purchases by the State Audit Service of Ukraine during wartime?

By Order No. 34 dated February 24, 2022 (download the order), the Chairman of the State Audit Service of Ukraine Gennadiy Plis ordered to stop the planned measures of state financial control, and if it is impossible to stop them, draw up acts on the impossibility of their implementation using the relevant procedures and regulatory legal acts. In addition, this order suspended the monitoring of procurement procedures initiated in accordance with Article 8 of the Law of Ukraine "On Public Procurement" for the period of martial law in Ukraine.

Thus, procurement monitoring is not carried out during the wartime period.

8. What should participants do if the customer requires a certificate from the State Tax Service and the Ministry of Internal Affairs as documents of the winner, but they are not issued during martial law?

Decree of the Cabinet of Ministers of Ukraine No. 165 dated February 28, 2022 (link to the document) on certain issues of the implementation of the rights, freedoms and legitimate interests of individuals and legal entities stopped the terms for the provision of administrative services by the subjects of their provision and the issuance of permitting documents by licensing authorities for the period of martial law in Ukraine. The specified terms will be restored in time after the termination or cancellation of martial law in the relevant territory of Ukraine.

According to the information indicated on the official website of the State Tax Service of Ukraine, the issuance of a certificate of the absence of debts on payments, the collection of which is entrusted to the regulatory authorities, is an administrative service provided by the territorial bodies of the State Tax Service (link to source). An act of legislation regulating the procedure and conditions for the provision of such an administrative service: The procedure for providing a certificate of the absence of debt on payments, the collection of which is entrusted to the regulatory authorities, approved by order of the Ministry of Finance of Ukraine dated 09/03/2018 No. 733, the administrative service was registered with the Ministry of Justice of Ukraine on 09/27/2018 under No. 1102/32554 (link to document).

Thus, at the time of this writing, it is impossible to obtain a certificate of absence of debt during martial law.

At the same time, it should be noted that in accordance with the Resolution of the Cabinet of Ministers of Ukraine No. 878 of October 28, 2015 (link to the document), which approved the Regulations on the Ministry of Internal Affairs and in accordance with the order of the Ministry of Internal Affairs No. 1256 of November 29, 2016 “On organizing access to information personal reference accounting of the unified information system of the Ministry of Internal Affairs of Ukraine” issuance of a certificate of non-conviction for individuals is not an administrative service, that is, the application of the Decree of the Cabinet of Ministers of Ukraine No.

“Customers who carry out open purchases cannot yet receive certificates from the Ministry of Internal Affairs from suppliers, because the Ministry of Internal Affairs is now destroying the invaders. Please treat with understanding and do not reject suppliers on this basis" - quote from the official website of the State Enterprise "Prozorro" (source link). Therefore, it should be noted that in practice this certificate is not yet possible to obtain.

Please note that according to part 3 of Art. 17 of the Law "On Public Procurement" (hereinafter referred to as the Law), the method of documentary confirmation in accordance with the legislation on the absence of grounds provided for in paragraphs 5, 6, 12 and 13 of the first part and the second part of this article is determined by the customer for the provision of such documents only by the winner of the procurement procedure through electronic procurement system.

According to part 6 of Art. 17 of 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 of a notice of intent to conclude 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 the first part and the second part of this article.

It should also be noted that since February 24, 2022, the work of state registries has been suspended in Ukraine (link to source), therefore, customers must independently determine how to check information regarding a participant or his official in accordance with paragraphs of Part 1 of Art. 17 of the Law.

Given the above and taking into account the impossibility of obtaining certificates from the State Tax Service and the Ministry of Internal Affairs, we ask customers not to establish requirements for the provision of such documents for the winners of the procurement procedure in accordance with Part 3 of Art. 17 of the Law, but to require a certificate or a letter of guarantee in any form.

Participants are advised to provide information about the absence of grounds specified in the first part of Article 17 of the Law in any form and / or a letter of explanation about the impossibility of providing a certificate from the State Tax Service and a certificate from the Ministry of Internal Affairs.

9. What should participants do if the customer requires a bank guarantee, and banks refuse to issue it?

From the beginning of the introduction of martial law on the territory of Ukraine, the Board of the National Bank of Ukraine adopted Resolution No. 23 dated February 25, 2022 “On Certain Issues of the Activities of Banks of Ukraine and Banking Groups”, which approved the rules for the operation of banks in connection with the introduction of martial law in Ukraine (link to document), and Decree No. 18 dated February 24, 2022 (as amended) “On the operation of the banking system during the introduction of martial law” (link to the document).

It should be noted that none of the above resolutions made changes to the procedure for issuing bank guarantees as security for a tender offer/proposal, including no changes were made to the Regulations on the procedure for banks to carry out operations with guarantees in national and foreign currencies, approved by the Resolution of the Board of the National Bank of Ukraine 12/15/2004 No. 639 (link to the document).

At the same time, according to many participants, after the introduction of martial law, banking institutions increasingly began to refuse to issue bank guarantees to certain enterprises. In addition, the conditions for issuing such a guarantee may become more complicated (for example, the cash coverage of a bank guarantee ranges from 50% to 100%; an additional guarantee is required by the bank, etc.).

It should also be emphasized that an important criterion for issuing a guarantee may be information about the location of the principal (participant), including in areas where active hostilities are taking place (Kharkiv, Chernihiv, etc.). For example, the chance that an enterprise located in the Transcarpathian region will be provided with a bank guarantee is higher than that of an enterprise located in the Sumy region. In addition, an important criterion may be the amount for which a bank guarantee is provided.

Taking into account the above and complicated conditions for issuing bank guarantees, we recommend that customers do not establish the conditions for providing bank guarantees in the tender documentation, and the participants contact customers with a request to remove/not establish this requirement in the tender documentation/announcement for the period of martial law on the territory of Ukraine.

10. QES or AES?

On February 23, 2022, news appeared on the website of the government portal, according to which the Cabinet of Ministers of Ukraine adopted amendments to the resolution on the use of an electronic signature on a secure medium. Mandatory use of an electronic signature on a secure medium in Ukraine has been postponed until March 31 (source link).

Thus, participants in public procurement until 03/31/2022 can continue to use the advanced electronic signature on an insecure medium when submitting a proposal (unless otherwise provided by the terms of the tender documentation).

At the same time, there is great confidence that the period until which AES can be used will be extended again, most likely until the end of 2022.

11. What should the customer do if he is abroad or in another city of the country without a QES? For example, if you want to cancel a purchase

In accordance with paragraph 3 of the Procedure for posting information on public procurement, approved by the Order of the Ministry of Economic Development, Trade and Agriculture of Ukraine dated June 11, 2020 No. 1082 (link to the document), information is posted in the electronic procurement system by the customer/CPO/participant/ supplier/appeal authority/state financial control authorities by filling in the electronic fields defined by the administrator and implemented in the electronic procurement system, and uploading the relevant documents through the automated workplace of the customer/CPO/participant/supplier/appeal authority/state financial control authorities.

If the information posted in the electronic procurement system by uploading documents contains information that differs from those posted by filling in electronic fields, information posted by filling in electronic fields is considered authentic.

After entering information into electronic fields, a qualified electronic signature of an official is superimposed on it. The information entered in the electronic fields may be displayed on the web portal as a printable document.

Disclosure of information on the web portal is carried out automatically by the electronic procurement system.

That is, the disclosure of information on the web portal without the use of an electronic signature is impossible. Also, there are no changes in the legislation in connection with the introduction of martial law on the territory of Ukraine on the use of an electronic signature by the customer when publishing information on procurement.

Thus, if the customer is located in another city/country without a QES, we recommend using the following methods to disclose information:

1. Try to use electronic services that allow you to get an electronic signature online. For example, from our site partner - DepositSign.
2. Impose a personal electronic signature, if any (i.e. a signature issued to an individual, without reference to the place of work).
3. Use AES instead of QES (this is an extreme case, because government customers are prohibited from using AES).

12. How to extend the term for concluding a contract in a simplified procurement (functionality is not provided), for example, if a participant cannot now conclude a contract due to martial law?

According to part 15 of Art. 14 of the Law on Public Procurement (hereinafter referred to as the Law), the customer may conclude a public contract with a participant recognized as the winner of a simplified procurement on the day following the publication of a notice of intention to conclude a public procurement contract, but no later than 20 days later. The procurement contract is concluded in accordance with the requirements of Article 41 of the Law.

Given the above, the Law does not provide for an extension of the term for concluding a contract based on the results of a simplified procurement.

It should be noted that the possibility of extending the period for concluding an agreement up to 60 days, provided for in Part 6 of Art. 33 of the Law, concerns procurement contracts concluded with a participant recognized as the winner of the procurement procedure. However, simplified procurement is not a procurement procedure within the meaning of Art. 13 of the Law.

Given the above, there are only two options for getting out of the situation: either cancel the simplified purchase, or publish the contract in violation of the deadlines.

You should additionally pay attention to the fact that Part 1 of Art. 43 of the Law does not contain a rule according to which the violation of the terms provided for in Part 15 of Art. 14 of the Law is the basis to consider such an agreement void. In addition, violations under Art. 164-14 of the Code of Administrative Offenses relate exclusively to procurement procedures and do not relate to violations related to simplified procurement.

In any case, we recommend that both customers and participants always follow the principles of public procurement, do not abuse the gaps in the Law and remain professionals in their field, especially at the present time.

How to get advice from SmartTender specialists?

If you have questions about the legal side of participation in the procurement, you can seek advice from SmartTender lawyers on this page.

You can also always contact our support service: 0 800 75 10 10.

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