What You Need to Know About Prozorro's Rejection Criteria

We have recently reported that starting from December 4, 2020, the Prozorro public procurement system will begin to electronation the criteria for evaluating tender documents from participants and procurement winners. To make the process of further digitalization of government tenders as comfortable as possible for you, our lawyers have prepared a memo for you. In it, you will find a list of all the grounds for refusal and how to document the absence of grounds for it. This information will be useful for both the organizers of the auction and their participants.

How to Add Information About the Absence of Rejection Reasons

Previously, confirmation of the absence of grounds for rejection looked like this:

Rejection Criteria Electronation in Prozorro

Now the block for confirming the absence of grounds for rejection on the SmartTender.biz site looks different:

Rejection Criteria Electronation in Prozorro

That is, the functionality of the block has significantly expanded. Let's take a closer look at what changes have occurred, and how it will be necessary to confirm the absence of grounds for rejection from December 4, 2020.

What Types of Procurement is Subject of Reasons from Art. 17 Electronation?

The innovation will affect the procedure for the following types of public procurement:

- open procurement;
- open procurement with publication in English;
- framework agreements;
- competitive dialogue (1st and 2nd stages);
- competitive dialogue with publication in English (1st and 2nd stages);
- open tenders for the purchase of energy services (ESCO procedures).

What Reasons for Denial to Participate in the Procurement are Checked?

When submitting your tender offer, it is imperative to confirm the absence of such grounds for its rejection by the organizer of the auction (government customer):

- the presence of facts of committing crimes for selfish motives;
- the presence of facts of committing economic offenses;
- the presence of facts of committing corruption offenses;
- the presence of facts of committing offenses related to the use of child labor or any form of human trafficking;
- the presence of arrears in the payment of taxes and fees (mandatory payments);
- the presence of the fact of initiation of a bankruptcy case;
- the presence of other grounds for refusing to participate in the procurement;
- the inconsistency of the language (s) in which the tender proposal should be written.

When announcing a public procurement, the state customer can independently choose the method of confirming the information specified in the requirement for each of the grounds (except for the inconsistency of the language or languages).

What Method of Confirmation of the Absence of Reasons You Can Choose?

In total, the new rules provide three methods of confirmation that the state customer can choose:

- attach a file;
- fill in the text box;
- attach the file and fill in the text box.

If the customer does not indicate the way of confirming the absence of each specific basis, then the supplier simply puts a mark in the checkboxes on compliance with such a criterion for admission to participation in the purchase.

Rejection Criteria Electronation in Prozorro

Anyway, according to the new rules, the period for the submission of a tender proposal is increased, so we recommend not to postpone it until the last minute, but to do it in advance (at least 6 hours before the deadline for accepting bids, as recommended by Prozorro).

More About the Electronation of Qualification Criteria and Confirmation of Compliance with Them

We have analyzed 17 of the Law "On Public Procurement", therefore, we propose to analyze in detail the specific grounds for refusing to participate in the tender and ways to confirm their absence for participants and winners in public procurements.

Reason No. 1: Offers to the Customer's Executive (Official) Person

The customer has irrefutable evidence that the procurement procedure participant offers, gives, or agrees to give, directly or indirectly, to any customer executive (official) person, another state body remuneration in any form (an offer to hire work, valuable thing, service, etc.) to influence the decision to determine the winner of the procurement procedure or to apply a certain procurement procedure by the customer.

The basis is checked by the customer directly during the procurement procedures, and documents from the participants and winners are not required.

Reason No. 2: Corruption or Corruption-related Offenses in the Unified State Register

Information about the legal entity that is a participant in the procurement procedure, entered in the Unified State Register of Persons Committing Corruption or Corruption-related Offenses.

The customer independently during the procurement procedures checks the information in the open register (section "Legal entity"). No documents are required from the winner.

Rejection Criteria Electronation in Prozorro

Reason No. 3: Responsibility for Corruption Offenses

Executive (official) person participant of the purchase procedure, which is authorized participant to represent him during the purchase procedure (or a natural person who is a party), was drawn by the law to liability for corruption offenses or an offense of corruption.

The customer independently verifies the information during procurement procedures in the open register (section "Individuals"). No documents are required from the winner.

Rejection Criteria Electronation in Prozorro

Reason No. 4: Anticompetitive Concerted Actions

A business entity (participant) has been held accountable for a violation under paragraph 4 of Part 2 of Art. 6 and p. 1 of Art. 50 of the Law of Ukraine "On Protection of Economic Competition" in the form of anti-competitive concerted actions related to distortion of the results of tenders.

It is checked directly by the customer when conducting procurement procedures independently in open data (information is regularly updated, so study only the latest data). No documents are required from the winner.

Rejection Criteria Electronation in Prozorro

Reason No. 5: Criminal Offense for Lucrative Motives (Natural Person)

An individual who is a participant in the procurement procedure was convicted of a criminal offense committed from lucrative motives (in particular, related to bribery and money laundering), whose criminal record has not been cleared or canceled in the manner prescribed by law.

Participants provide the relevant certificate in free form. The winner provides documentary evidence in the manner specified by the customer: a certificate from the Ministry of Internal Affairs of the absence of a criminal record. You can check such a certificate on the Ministry of Internal Affairs website.

Rejection Criteria Electronation in Prozorro

Reason No. 6: Criminal Offense for Lucrative Motives (Official Person)

An official (official) of a participant in the procurement procedure who signed the tender offer (or authorized to sign the contract in the case of a negotiated procurement procedure) was convicted of a criminal offense committed out of selfish motives (in particular, related to bribery, fraud and money laundering), the criminal record from which has not been removed or canceled in the manner prescribed by law.

Participants provide the relevant certificate in any form. The winner provides documentary evidence, thus established by the customer: a certificate from the Ministry of Internal Affairs of the absence of a criminal record. You can check such a certificate on the Ministry of Internal Affairs website.

Rejection Criteria Electronation in Prozorro

Reason No. 7: A Participant is a Related Person

The tender proposal is submitted by a participant in the competitive procurement procedure or participation in the negotiation procedure is taken by a participant who is a related person with other participants in the procurement procedure and/or an authorized person (s) and/or with the head of the customer.

It is checked directly by the customer during the procurement procedures, and documents from the participants and winners are not required.

Reason No. 8: Procurement Participant is Declared Bankrupt

By the procedure established by law and a liquidation procedure has been opened against procurement participants.

The customer independently during the procurement procedures checks the information in the open register, and the supplier can get such a certificate here. Documents from participants and winners are not required.

Rejection Criteria Electronation in Prozorro

Reason No. 9: Absence of Legal persons, Individual Entrepreneurs, and Community Groups in the Unified State Register

In the unified state register of legal entities, individual entrepreneurs, and community groups missing information required by paragraph. 9 h. 2 tbsp. 9 of the Law of Ukraine "On State Registration of Legal Entities, Individual Entrepreneurs and Public Organizations" (except for non-residents).

The customer independently checks the information during the procurement procedures open register. Documents from participants and winners are not required.

Rejection Criteria Electronation in Prozorro

Reason No. 10: Absence of an Anti-Corruption Program

A legal entity that is a participant in the procurement procedure (except for non-residents) does not have an anti-corruption program or an authorized person to implement an anti-corruption program, if the cost of purchasing goods (goods), services (services), or works is equal to or exceeds UAH 20 million (including for individual lots).

Depending on the customer's requirements, the participant either in the form of a certificate provides information on the existence of an anti-corruption program and an authorized person for its implementation or provides his copy of the anti-corruption program and order to the authorized person for its implementation (more details). The winner is checked directly by the customer during the procurement procedures; documents from the winner are not required.

Rejection Criteria Electronation in Prozorro

Reason No. 11: Sanctions Have Been Applied to a Procurement Participant

A participant is a person who has been sanctioned in the form of a ban on participation in public procurement of goods, works, and services by the Law of Ukraine "On Sanctions".

The customer independently verifies the information (NSDC Decision of 04/28/2017 (as amended) "On the application of personal special economic and other restrictive measures (sanctions)", approved by the Decree of the President of Ukraine of 05/15/2017 No. 133/2017, NSDC decision of 05/14/2020 " On the application, cancellation, and amendments to personal special economic and other restrictive measures (sanctions) ", approved by the Decree of the President of Ukraine dated May 14, 2020, No. 184/2020). The winner is checked directly by the customer during the procurement procedures; documents from the winner are not required.

Rejection Criteria Electronation in Prozorro

Reason No. 12: Child Labor or Any Form of Trafficking in Persons

Executive person (official) of a participant in the procurement procedure who is authorized by the participant to represent his interests during the procurement procedure (or an individual who is a participant) was held liable according to the law for commission of an offense related to the use of child labor or any form of trafficking in persons.

Participants provide a certificate in any form. The winner provides documentary evidence in the manner specified by the customer: a certificate from the Ministry of Internal Affairs on the absence of a criminal record (no criminal record) or information in any form, depending on the customer's requirements. You can check such a certificate on the website of the Ministry of Internal Affairs.

Rejection Criteria Electronation in Prozorro

Reason No. 13: Arrears in the Payment of Taxes and Fees

A participant in the procurement procedure has arrears in the payment of taxes and fees (mandatory payments) unless such a participant has taken measures for the installment plan and deferral of such debt in the manner and under the conditions determined by the legislation of the country registration of such a participant.

Participants provide a certificate in any form. The winner provides documentary evidence in the manner established by the customer (as a rule, a certificate of the absence of arrears in payments, control over the collection of which is entrusted to the regulatory authorities issued by the State Tax Service of Ukraine (the form of which is approved by order of the Ministry of Finance of Ukraine dated 03.09.2018 No. 733), which is valid as of the time of submission, or the customer checks the information that is automatically generated in the electronic procurement system as a result of its integration with the information systems of the State Fiscal Service of Ukraine).

Rejection Criteria Electronation in Prozorro

Reason No. 14: Procurement Participant Did Not Fulfill Obligations Under Previously Concluded Contracts

The procurement participant did not fulfill his obligations under the previously concluded procurement contract with this same customer, which led to its early termination, and sanctions in the form of fines and/or compensation were applied losses (within three years from the date of early termination of such an agreement).

Participants and the winner provide a certificate in any form. A participant in the procurement procedure in the circumstances specified in Part 2 of Art. 17 of the Law, can confirm the adoption of measures to prove its reliability, despite the existence of an appropriate basis for refusing to participate in the procurement procedure. For this, the participant (business entity) must prove that he paid or undertook to pay for the corresponding obligations and compensate for the losses caused.

We hope that this memo will save you time and help you quickly adapt to work in the Prozorro system according to the new rules. And we will continue to contribute to your success by preparing new useful materials.

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