Today, one of the most common questions among bidders is the deadline for submission of documents by the bidder.

In accordance with the paragraph. 2 h. 3 Art. 17 of the Law of Ukraine "On public procurement" (hereinafter – the Law), the winner of the auction within a period not exceeding five days from the date of publication of the notice of intention to conclude an agreement on the web portal of the Authorized Body, must provide the customer with documents confirming the absence of grounds specified in paragraphs 2 , 3, 5, 6 and 8 of the first part of this article.

Counting the Days Correctly

Let us analyze an imaginary situation using an example in which the customer published an intention to conclude an agreement on March 5, 2019. The first day from which the countdown of the deadline for submission of documents from the winning bidder begins is March 6 (Wednesday), that is, the next day after the day the intention was published. After checking the calendar, we understand that the fifth day, when the participant is obliged to provide documents, is considered to be March 10 (Sunday).

Sunday is a common day off, which means many may think that the documents from the winner can still be submitted on Monday, March 11th. For example, this follows from Part 5 of Art. 254 of the Civil Code, which establishes the following: if the last day of the term falls on a weekend, holiday or another non-working day, determined in accordance with the law at the place of the specific action, then the deadline expires on the first working day after them.

Lawyers, accountants and even experts in the field of public procurement refer in their writings and comments to the above rule and consider that downloading certificates on the first working day after weekends and/or holidays is permissible and will not be regarded as a violation.

However, the position of the Antimonopoly Committee of Ukraine (hereinafter referred to as the AMCU), which is the appeals body under the Law, as well as the national courts, means that the last day for submitting documents from the winner is considered the fifth calendar day, regardless of whether March 8 (holiday), or Sunday (day off).

In the hypothetical situation we quoted above, the last day for submitting documents from the winner is March 10, 2019. We propose to confirm the above position of state bodies by analyzing specific decisions of the AMCU and the courts.

Decisions of Economic Courts

The Economic Court of Cherkasy region in its Decision of October 3, 2017 in case No. 925/945/17 considered the argument of the plaintiff to be groundless, that it is impossible to consider two days out of 5 days as a delay for the weekend, since this period is established by article 17 of the Law of Ukraine "On public procurement." The term does not depend on the actions of either the claimant or the Respondent (Customer), could not be predicted and should not have been predicted by the Respondent (Customer) during the tender placement, as well as the subsequent procurement procedure.

The Economic Court of Odessa Region on September 18, 2017, in case No. 916/1679/17, noted that the deadline is the fifth day. The court found that during 30.06.2017 (Fridays), 01.07.2017 (Saturdays), 02.07.2017 (Sundays), 03.07.2017 (Monday), as well as on the last fifth day of the term, which is 04.07.2017 (Tuesday), the necessary documents from the plaintiff to the defendant did not arrive. At the same time, the court notes that the Law does not contain any prescriptions regarding the grounds for extending this period. Considering that the winner’s documents were provided on July 5, 2017 (after the expiration of the time period specified by the Law), the customer made a legitimate decision to reject the bidder’s bid.

AMCU Solutions

An interesting precedent in the practice of resolving disputes under para. 2 h. 3 Art. 17 of the Law is the Decision of the Permanent Administrative Board of the AMCU to consider complaints about violation of the law in the field of public procurement No. 2409 dated 03.16.2018 and Decision No. 6871 dated 02.10.2017.

The Expected Decision in Favor of the Customer

In the first of the above decisions, the announcement of the intention to conclude an agreement with the participant was published on February 9, 2018. The complainant noted that its protocol dated February 9, 2018 No. 5.14 determined the winner of the procurement procedure. Complying with the requirements, the Complainant even before the deadline (00.00 02/15/2018) for the submission of documents confirming the absence of grounds provided for by Article 17 of the Law of Ukraine "On Public Procurement" (hereinafter – the Law), at 1741 41.02.28 loaded all documents provided for Annex 2 of the documentation for the winner to the electronic system, and on the same day sent them with a description of the courier service "Nova Poshta", as evidenced by:

an inventory of the attachment of a letter with a note about the inspection of documents by an employee of Novaya Pochta LLC dated February 13, 201, express-invoice No. 59 0003 1753 5090;
receipts of payment of departure from February 13, 2018 (19 hours 23 minutes)
screenshot of the fact of receipt of documents by the Customer.

The complainant said that he had sent all the necessary documents before the deadline for the provision of such documents, urgent delivery, and also provided such documents to the Customer on time through the electronic procurement site.

For its part, the Customer noted that the documents confirming the absence of grounds determined by the first and second parts of Section 17 of the Law, the Claimant provided (transferred) to the office of Education a representative of "Nova Pochta" on February 15, 2018, at 12 hours 58 minutes. Along with the package of documents, an express consignment note was provided to Novaya Pochta LLC No. 59000317535090, which contains the following information: "Date of issue: Wed" February 14, 2018, Estimated arrival date: Thurs February 15, 2018". The customer submitted, for example, the express consignment note of “Nova Pochta” LLC No. 59000317535090 of February 14, 2018, to which the estimated date of arrival of the item (documents) is February 15, 2018, as well as the receipt mark – February 15, 2018.

In the operative part, the appeals body concluded that the Complainant did not prove and did not document that the Customer received documents confirming the absence of the grounds specified in the first and second parts of Section 17 of the Law within the time and manner prescribed by the Documentation.

Appealing the Decision of the AMCU

In Decision No. 6871 dated 10/02/2017, the Customer announced his intention to conclude an agreement on 23.08.2018. On the same day, the Complainant fully provided the Customer with documents in paper form. However, a certificate of the absence of tax, duty and payment arrears was provided only on August 29, 2017, which is due to the fact that it was impossible to provide it earlier, since, in accordance with paragraph 4 of the Procedure, approved by Order of the Ministry of Revenue and Duties of Ukraine of October 10, 2013 No. 567, The period for consideration of the application of the payer and issuance of a certificate or refusal to provide it is five working days from the date of receipt of such an application by the body of revenues and fees.

According to the complainants, the request for the certificate, given that the days from 08/24/2017 to 08/27/2017 were days off, was sent to the tax authority twice, 08/23/2017 and 08/28/2018, and the Certificate was issued in paper form to the third working the day is only 29/08/2017. The AMCU in its decision found that the deadline for submitting documents of the winner is 08/28/2017. Consequently, a certificate of the absence of tax arrears, fees, payments were provided after the expiration of a five-day period for the submission of documents of the winner, and therefore the appeals body refused to complainants to satisfy its Complaints.

However, the above case did not end there. The complainant filed a lawsuit in the District Administrative Court of the city of Kiev on the recognition of the unlawful decision of the Antimonopoly Committee of Ukraine No. 6871 of 02/10/2017 and its cancellation. The court found that the legislatively approved duty of the winner of the procurement is to provide the documents specified in the normative act itself within five days, and the certificate of the absence of tax arrears is not included in the list of these documents. The court decided that the legislative consolidation of the obligation to provide certain documents within five days does not allow for an increase in the list of such documents, including in the tender documentation.

The court concluded that the legally stipulated possibility of rejecting the tender proposal in case the winner did not provide documents confirming the absence of grounds provided for by the entire provision of Article 17 of the Law cannot limit the deadline for submitting such documents to five days, since this period is directly established for a limited list of documents, what is directly stated in the text of article 17 of the Law of Ukraine on public procurement.

The court agreed with the possibility of applying to the time limit for submitting a certificate of non-arrears criteria of a reasonable time, however, did not agree with the use of a five-day time limit for this period. The court also noted that the deadline for providing the winner to the customer a package of documents in paper form is defined in paragraph 2.1, paragraph 2.2, paragraph 2.3. section V of the tender documentation, and is 5 days. It is not defined whether it is calendar or working days. Documents in full were provided to the customer on the third working day and could not be provided earlier, taking into account two holidays (Independence Day of Ukraine) and two days off after. The deadline for submission of a package of documents, namely, the Certificate of the absence of arrears on taxes, fees and payments on August 29, 2017, cannot be regarded as providing beyond the deadline established by part three of Art. 17 of the Law of Ukraine On public procurement, given that August 24 to 28 were days off.

The court recognized as unlawful and overturned the decision of the permanent administrative board of the Antimonopoly Committee of Ukraine of 02.10.2017 No. 6871, and also obliged the permanent administrative board of the Antimonopoly Committee of Ukraine to consider the complaint of the Complainant, filed during public auction procedures No. UA-2017-06-23-000511-а.а2 taking into account the resolution stated in the motivation part.

The Kyiv Administrative Court of Appeal fully supported the position of the first instance, leaving without satisfaction the appeals complaints of the Antimonopoly Committee of Ukraine and the Customer on procurement. Further, on July 30, 2018, cassation proceedings were opened on a third-party complaint against the decision of the District Administrative Court of Kiev dated March 12, 2018, and the decision of the Kiev Appeal Administrative Court of May 29, 2018, in case No. 826/13635/17. Now information about the future of this case is not in the Unified Register Of Court Decisions.

Results

In practice, the phrase “within a period not exceeding five days from the date of publication of a notice of intention to conclude an agreement on the web portal of the Authorized Body” means that the final date for submission of documents to the bidder is the fifth calendar day, regardless of whether working day, weekend or holiday (the period begins on the next calendar day after the customer has made public his intention to conclude an agreement).

The term does not depend on the actions of either the participant or the customer, and should not be predicted by the customer when placing the advertisement and carrying out the procurement procedure.

The law does not contain any prescriptions as to the grounds for extending the deadline for submission of documents by the winner.

Significant for the fulfillment of the provisions of para. 2 h. 3 Art. 17 of the Law is not only the time of dispatch of documents to confirm compliance, but also the time of their receipt by the Customer. It is important that the Customer obtains the documents within a period of five days specified by law. Exceeding this period may be regarded as the basis for rejecting the winning bidder’s proposal.

The law does not set a period during which the winner must provide a certificate of the absence of arrears in the payment of taxes and fees (mandatory payments). Customers set this period in the tender documentation themselves. At the same time, customers, when determining the deadlines for submitting certificates from the SFS, should apply the criteria of a reasonable time.
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