SmartTender lawyers

During martial law, SmartTender lawyers continue to actively analyze decisions of the Permanent Administrative Board of the AMCU. Today we bring to your attention the second part of the material devoted to the review of the decisions of the Board, adopted in May (more than 350 of them were adopted), of which the lawyers have selected the ten most interesting for you.

In the first part of the material, decisions on complaints regarding the implementation of the provisions of Article 17 of the Law of Ukraine “On Public Procurement” (hereinafter referred to as the Law), and complaints about the unlawful cancellation of the procurement procedure, were considered.

Today, in the second part, decisions will be considered on complaints regarding non-compliance by participants with the requirements established by the first paragraph of part three of Article 22 of the Law, as well as complaints regarding the provision of false information by the participant and non-compliance with the procedure for translating tender proposal documents.

Inaccurate information about the lack of court decisions

Purchase ID: UA-2022-01-14-003733-c

Decision № 4469-р/пк-пз from 06.05.2022

The complainant notes that the terms of the tender documents contain the following text: confirms the absence of any decisions (decisions) on the participant in the Unified State Register of Judgments (https://reyestr.court.gov.ua) regarding poor and/or improper provision of services according to the subject of this procurement (catering services, catering services, etc.), including the termination of the contract and/or recovery of debts from the participant. The presence of such decisions regarding a participant in the Unified State Register of Judgments will be grounds for rejection. "

The complainant draws attention to the fact that the winner provided a letter of guarantee for compliance with the above requirement in the proposal, but the information provided in this letter is inaccurate, as the Unified State Register of Judgments refers to the decision on termination and recovery compliance with the terms of the contract, where the defendant is the winner of the procurement procedure.

As evidence, the complainant in particular submitted to the panel the decision of the Commercial Court of Kyiv, according to which the court decided to satisfy the claim of the plaintiff and collect from the defendant in favor of the plaintiff 16.75 UAH. fines, UAH 3,349.64 fine, UAH 1,762 court costs.

Despite the customer's explanation that all the necessary documentation requirements were met by the winner, the AMCU Board decided the following: taking into account the information provided, including the documents and information provided by the complainant, the winner provided inaccurate information in the proposal the customer has grounds for rejecting the bid of the bidder, defined by paragraph 1 of the first part of Article 31 of the Law.

It should be noted that the presence of the above court decisions is not a ground for refusing or prohibiting participation in the procurement procedure under the Law. However, if the customer has prescribed a similar requirement to confirm the absence/availability of information in the relevant state registers by providing a verifiable letter of guarantee, and such a requirement has not been challenged – participants should comply with such conditions and provide truthful information in the proposal, and customers – to verify the accuracy of the information provided by participants.

QES without a qualified time stamp

Purchase ID: UA-2021-12-24-005039-b

Decision № 4497-р/пк-пз from 10.05.2022

According to the protocol of tender proposals, the reason for rejecting the complainant proposed that, in violation of the tender documentation, during the inspection of the QES on the website of the CPO found the following: "Time of signature (not confirmed by a qualified time stamp for signature from the Provider)", "We draw your attention to the fact that with the entry into force of 07.11.2018 Law of Ukraine "On electronic trust services" and by part four of Article 26 of this law, the use of qualified electronic timestamp for permanent storage of electronic data is mandatory. We ask you to apply to your subject of electronic signature services with a request to bring the software and hardware in line with the law". The customer adds that the above violates the requirements of the Law "On ETS".

The complainant claims that the analysis of the QES inspection makes it possible to establish the presence of information in its composition, which reflects the name and initials of the person authorized to sign the tender offer (key owner) of the director of the enterprise.

The complainant also notes that the customer did not set other requirements for the imposition of QES than those he noted and complied with. The Customer did not set requirements that the signature of the QES of the proposal must be confirmed by a qualified time stamp for the signature from the Provider. The complainant emphasizes that the Law does not in any way state that in the absence of a qualified electronic time stamp, the QES is invalid.

It should be noted that under the terms of the tender documentation, by the third part of Article 12 of the Law, when using the electronic procurement system to submit tenders and evaluate them, documents required by the customer and data are created and submitted by the Law of Ukraine electronic documents and electronic document management and the Law "On ETS".

In the motivating part of its decision, the AMCU board noted that by the fourth part of Article 26 of the Law "On ETS", the use of qualified electronic timestamp for permanent storage of electronic data is mandatory.

Given the above, as well as the information displayed during the inspection of the QES with the help of the CPO, the AMCU Board found that the complainant's proposal was imposed QES not by the Law "On ETS", therefore the bidder does not meet part three of Article 22 of the Law to the requirements for the participant by the legislation.

Given the above, we recommend that customers carefully check the electronic signatures of bidders for compliance with the requirements of the tender documents. And for participants, if your electronic signature contains similar or other problems, contact your electronic signature service provider.

In addition, we also draw the attention of participants and customers to the fact that business representatives continued the use of AES until the end of martial law and for another 6 months after it, by the Resolution of the Cabinet of Ministers № 617.

But to participate in public procurement, suppliers will need exactly the type of electronic signature that the customer will specify in the tender documents. If in the conditions of documentation the QES is specified – it is possible to use only it, if the type of the signature is not specified – it is allowed to apply at the choice of QES or AES.

Lack of the original document from which the translation is made

Purchase ID: UA-2022-01-25-002969-a

Decision № 4672-р/пк-пз from 19.05.2022

The tender documentation stipulates that the tender proposal and all documents stipulated by the requirements of the tender documentation and its appendices shall be drawn up in the Ukrainian language. Documents or copies of documents (required by the tender documentation and its annexes) provided by the bidder in the tender proposal, presented in other languages, must be provided together with their authentic translation into Ukrainian, and the translation (or authenticity of the translator's signature) – notarized or legalized in the manner prescribed by the legislation of Ukraine.

In addition, the terms of the documentation stipulate that the bidder must provide a document from the manufacturer (quality certificates or certificates/quality passports) for items 1, 2, 3, and 4 (Table 1), confirming compliance with the technical characteristics of the goods defined in Table 1 (column Product Specifications) of this Annex.

The complainant notes that the winner's proposal includes a Technical Passport (certificate of quality) of products on A4 paper. The text of this product passport states that its translation was made following the original. However, the winner's proposal does not include the original of this product passport, from which it was translated. In this case, the document provided as part of the winner's proposal is an official translation from the original, and not the original, as required by the terms of the documentation. The complainant also draws attention to the fact that the translation does not contain either the translator's signature or the notarization of such a signature.

In addition, the complainant states that this document was not issued by the manufacturer. This is evidenced by the information in the conclusion of the state sanitary-epidemiological examination №602-123-20-3/40475 dated 25.09.18, and following the requirements of the tender documentation, the product passport had to be issued by the paper manufacturer.

Considering this complaint, the AMCU Board notes that the winner's proposal includes a Ukrainian translation of the technical passport (quality certificate), which contains information about the manufacturer, information on quality assurance, and information that "the translation was made according to the original" and also information about the representative of the manufacturer in Ukraine and his seal (without signature).

The AMCU Board concludes that the complainant has not proved and documented that the original technical passport (quality certificate) from which the above translation was made was not issued by the manufacturer.

However, the Board notes that the winner's proposal does not contain the original technical passport (quality certificate), from which the above translation was made, as well as the translation of the technical passport (quality certificate) is not notarized. Thus, the winner's proposal is stated in a language other than that required by the bidding documents.

Given this, we emphasize that if the tender offer includes a document presented in another language when preparing documents, you should carefully pay attention to the translation requirements set by the customer, and do not forget to download the original together with the translation. the document from which such a translation was made.

Decision on the complaint related to the provision of guarantees by the Law of Ukraine "On Personal Data Protection"

Purchase ID: UA-2022-01-19-012351-a

Decision № 4458-р/пк-пз from 05.05.2022

The tender documentation stipulates that by Articles 3, 32, 34 of the Constitution of Ukraine, the Law of Ukraine "On Personal Data Protection" (hereinafter – the Law "On Protection of Personal Data"), the Council of Europe Convention 1981 № 108 "On the Protection of Individuals data” (ETS № 108), the signature of the natural person (representing the tenderer) on the documents provided and established for registration during the procurement procedure is a confirmation of obtaining the consent of natural persons acting on behalf of the tenderer for processing (collection, registration, accumulation, storage, adaptation, modification, renewal, use and dissemination (dissemination, transfer), depersonalization, destruction) of personal data of the participant or individuals who are officials/employees authorized by the participant, as well as perform other actions specified by law "On protection of PD". It was also noted that the participant is a natural person, the authorized person of the participant-legal entity, provide a letter of guarantee in the proposal that they are informed of their rights by Article 8 of the Law "On Protection of PD".

As part of the winner's tender offer, there is consent to the processing of personal data by the Law "On Protection of PD". However, the complainant alleges that the customer should have rejected the winner's offer, citing the lack of a letter of guarantee that the winner had been notified of his rights under Article 8 of the Law on Protection of Public Procurement.

The AMCU Board draws attention to the fact that the winner's proposal includes a letter of consent for the processing of personal data of the following content: "According to the Law" On Personal Data Protection “In accordance with the Law "On the Protection of Personal Data" dated 01.06.10 No. 2297-VI, I Entrepreneur E. consent to the processing, use, distribution and access to personal data provided for by the Law of Ukraine "On Public Procurement", as well as in accordance with the rules current legislation, my personal data (including passport data, identification code, taxpayer certificate, bank details, current accounts, electronic identification data: phone numbers, email addresses or other necessary information provided by law), information that I provide about itself to ensure participation in the competitive bidding procedure, civil law and economic relations”.

At the same time, the AMCU board confirms that the winner's proposal does not contain a letter of guarantee that he has been informed of his rights by Article 8 of the Law on Protection of Public Procurement.

Thus, we recommend participants carefully study the terms of the tender documentation when preparing tender proposals, to avoid such errors, which further lead to deviations. And for customers – to check in detail the compliance of confirmations provided by bidders in the tender offer.

The nuances of formulating a certificate of environmental protection

Purchase ID: UA-2022-01-18-003498-c

Decision № 4678-р/пк-пз from 19.05.2022

The complainant notes that the bidder did not provide in his proposal a letter of guarantee that the subject of procurement meets environmental standards and will not cause adverse effects on the environment, which did not confirm the established requirements of the customer.

The customer, in turn, notes that the winner of the tender provided a certificate of environmental protection, which fulfilled the customer's request, respectively, the complainant's claim is unfounded.

It should be noted that the terms of the tender documents provide for the provision of a letter of guarantee of the bidder in any form that the subject of procurement meets environmental standards and will not cause adverse effects on the environment.

The AMCU Board, having examined the winner's documents, notes that the proposal includes a letter of notification on the application of environmental protection measures. In it, the participant informs that the offered goods will be delivered taking into account the ecological requirements set out in the Law of Ukraine "On Environmental Protection", as well as developed by the Land, Water, Forest Codes, Laws of Ukraine "On Air Protection", "On waste ", "On radioactive waste management", and with the provision of all measures to protect the environment. Transportation (delivery) of goods is carried out by the current legislation of Ukraine and the Rules of Carriage of Goods.

However, the panel is on the side of the complainant and confirms that the winner's proposal does not contain a letter of guarantee from the participant in any form that the subject of procurement meets environmental standards and will not adversely affect the environment.

Please note that the above discrepancy in the wording of the environmental certificate is one of the most common mistakes when preparing a tender. The fact is that, as a rule, participants use an already prepared certificate template, the wording of which may differ from that required by the terms of the documentation. For example, the most common variations are as follows:

- the participant must confirm the application of environmental protection measures;
- the participant must confirm compliance with the requirements of current legislation on environmental protection;
- technical, qualitative characteristics of the subject of procurement should provide for the need to apply environmental protection measures;
- goods/services/works must comply with environmental protection standards;
- the bidder must confirm the application of environmental protection measures during the implementation of the terms of the contract;
- the bidder must confirm the application of environmental protection measures during the preparation of the tender proposal.

Additionally, the terms of the tender documents may require a list of measures taken by the bidder to confirm the above requirements.

In this regard, we recommend participants carefully study the terms of the tender documentation and confirm the form and wording required by the documentation, and customers – carefully check the compliance of such confirmations.

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