What to Look for During a Complaint Filing – the SmartTender Lawyer Advice

Filing a complaint with the AMCU is one of the main and important protection mechanisms that allow you to fight against illegal decisions and inaction of customers. The new edition of the Law "On Public Procurement" (hereinafter referred to as the Law) improved the principles of appeal, while the basic rules for filing a complaint remained unchanged. In this article, the legal advisor of the SmartTender, Yan Tomashuk, will tell you what to look for during a complaint filing.

How to File a Complaint Properly

Part 2 of Article 18 of the Law indicates that a complaint to the appellate body is submitted by the subject of the appeal in the electronic document form using the electronic procurement system. There are three important nuances here:

1. 1. The law does not contain requirements regarding the format for filing a complaint, and therefore filing a complaint in any file format is not a violation (it can be pdf, doc, etc.).

   2. Today practice is known when participants uploaded a doc-file with a complaint without signing it with either their signature or QES/EDS, and such a complaint was successfully considered.

   3. It should be remembered that part 5 of Article 18 of the Law contains clear requirements on what kind of information a complaint should contain.

Summing up the above, the content of the complaint itself prevails over the formalization. Despite this, I advise you to adhere to the norms of the Law and file a complaint in the format of an electronic document, with the imposition of the QES/EDS of the authorized person.

What Data Should the Complaint Contain

By the Law, the following information must be indicated in the complaint:

1. Customer Information

Indicate the name of the customer, whose decisions, actions, or omissions are being appealed. It is common practice to add information about the Unified Government Register of Enterprises and Organizations of Ukraine, although this is not required and not provided by law.

2. Complainant Information

Enter the name (title) and place of residence (location) of the subject of the complaint (complainant). To avoid possible troubles, be sure to check the information about the legal address in the Unified State Register of Legal Entities, Individual Entrepreneurs, and Public Organizations.

3. Grounds for a Complaint Filing

Indicate the grounds for a complaint filing, references to a violation of the procurement procedure or decisions made, actions or omissions of the customer, and the factual circumstances that may confirm this. First of all, focus on the customer's decision (indicate by whom and when the corresponding decision was made or inaction was committed).

Example: "By the protocol of consideration of bids No. 7 dated 10.10.2020, the tender offer of LLC "ROMASHKA" was rejected".

Next, write about the violation of your rights.

Example: “We believe that such decisions, actions, and inaction of the customer violated the rights and legitimate interests of the subject of the appeal, which led to a violation of the law, namely the requirements of Art. 5 of the Law of Ukraine "On Public Procurement" on the principles of public procurement".

4. Justification of the Violation Fact

Explain the fact of violation of your rights and interests protected by law in the field of public procurement due to the decision, action, or inaction of the customer. This is the most important part of the complaint. It is a competent description of certain violations that allows you to win the case and convince the tender board of the AMCU to take your side. Read more about the justification rules below.

5. Claimant's Claims

Indicate your requirements as a subject of the appeal and justify them. This is the final part, which is also extremely important. The main task of the final requirements is to indicate that the complaint should be accepted for consideration, that violations of the legislation on the part of the customer are recognized, and that his decision is canceled or that the norms of the tender documents be brought in line with the provisions of the current legislation.

How to Substantiate a Complaint

As already mentioned, justification is the most important part, the quintessence of the complaint. In this case, the main arguments of the complaint are prescribed without exaggeration. Here you can use a variety of information, starting with the correctness of the determination of the grounds for rejection (by Article 31 of the Law) and the calculation of terms, and ending with the requirements of the tender documents (hereinafter referred to as TD) and their level of discrimination.

An Important Part of a Successful Appeal

For a successful appeal, learn to build on the terms of the TD: draw parallels, pay attention to details and literal fulfillment of conditions, etc. The important thing is how the requirements are spelled out in the TD, and the level of their compliance. For example, if the documentation does not contain separate requirements for the execution of a document (for example, a lease agreement or a power of attorney for an authorized person), the customer does not have the right to reject the participant's proposal due to the lack of notarization of such a document.

If we are talking about unreliability, provide evidence, not just bare facts; if there is discrimination, indicate the arguments. Always remember that it is the complainant's responsibility to prove yourself right.

Let me remind you that there is no case law in Ukraine. Therefore, the analysis of the practice of decisions of the AMCU tender board will allow you to predict the success of satisfying the complaint and the probability of victory in general. It is very important to understand in advance which foundations do work and which do not. At least, it determines whether you will be refunded for filing a complaint. I think you will agree that this is an important argument when complaints filing in purchases worth more than 28 million hryvnia costs 85 thousand hryvnia (when the conditions are appealed) and 170 thousand hryvnia (when appealing the results of the procurement).

If you do not want to waste your time on legal issues, entrust the process of a complaint filing to the professional lawyers of SmartTender. To do this, order legal advice directly on the page of the selected tender.

Adhere to the rules listed in this article and increase your chances of winning government tenders!