АМКУ — the Antimonopoly Committee as Ukraine's procurement appeal body

Who decides

Article 18 of Law 922-VIII designates the Antimonopoly Committee of Ukraine as the орган оскарження. It forms a Commission (or Commissions) for the Review of Complaints on Violations of Public Procurement Legislation, whose decisions are taken in the Committee's name, with powers and operation set by this Law and the Law on the Antimonopoly Committee of Ukraine.

A complaint is submitted as an electronic document through the procurement system, signed with a qualified electronic signature. If you are challenging the tender documentation, documentary evidence must be uploaded with it; if you want to attend the hearing remotely, you must apply within the same period allowed for the complaint.

What it costs

Article 18(7) leaves the fee to the Cabinet. Cabinet of Ministers Resolution No. 292 of 22 April 2020 sets it at 0.3 per cent of the expected value of the procurement subject — or of the lot, where you are challenging only part — subject to a minimum of 2,000 UAH and a maximum of 85,000 UAH. The electronic system calculates the amount automatically and rounds it up to the next 10 UAH.

The fee is returned if you succeed. Article 18(6) provides that where the appeal body satisfies or partly satisfies the complaint, or leaves it without consideration or terminates the review because the buyer has removed the violations complained of, the fee is refunded to the complainant. Otherwise it goes to the state budget. Resolution 292 requires the administrator to return the fee within two working days of the relevant decision.

The deadlines

These are the hardest part, and the system enforces them automatically — Article 18(8) states that where the periods are missed the electronic system does not accept the complaint at all.

• Tender documentation. From publication of the notice, but not later than four days before the bid deadline as it stood before any amendment to the documentation.
• Decisions, acts or omissions before the bid deadline. Within 10 days of the day you learned or should have learned of the breach, but again not later than four days before the deadline as it stood when the decision was taken.
• Decisions, acts or omissions after evaluation of bids. Within 10 days of learning of the breach, but before the contract is concluded.
• Prequalification under Article 29. Within five days of publication of the bid review protocol.
• Amendments to the documentation. Within 10 days of publication of the amendment, but not later than four days before the deadline set when it was made.

Two preclusion rules follow. Once the period for documentation complaints expires, provisions that were not amended can no longer be challenged; and where a complaint about documentation has been decided on the merits, any provisions nobody challenged in time become unchallengeable.

What happens once you file

Publication of the complaint automatically suspends the start of the electronic auction and stops the system publishing the buyer's cancellation decision, the contract or the results report. Review also suspends the statutory time limits, which resume the day after the appeal body decides.

Within three working days of the complaint being entered in the register, the appeal body must publish either a decision accepting it for review — with the date, time and place of the hearing — or a reasoned decision to leave it without consideration. The review period is 10 working days from acceptance, extendable with reasons to 20.

Evidence has its own clock. Buyers, participants, controlling bodies and the Authorised Body must answer a request from the appeal body within three working days, and no later than the day before the hearing. Anything you want the Commission to consider must be filed at least three working days before the hearing; late material may be disregarded.

What the Commission can order

Under Article 18(20) the decision states the violations found and the measures to remedy them. It may oblige the buyer to cancel its decisions in whole or in part; to provide documents or clarifications; to remove any discriminatory conditions, including those in the technical specification forming part of the tender documentation; to bring the tender documentation into line with the law; or, where the violation cannot be corrected, to cancel the procurement procedure.

The operative part is published in the system within one working day, and the full decision within three working days. If it is not challenged in court, it must be complied with within 30 days. Either the complainant or the buyer may appeal to the district administrative court whose jurisdiction covers Kyiv, within 30 days of publication.

What to do about it

Diary the four-day line the moment you decide to bid. Nearly every documentation complaint that fails, fails on timing rather than merit, and the system will not let you file late.

Decide early whether you are challenging the documentation or reserving a challenge to the award — they are different windows with different evidence requirements, and the documentation window closes first and permanently.

Price the fee against the contract. At 0.3 per cent capped at 85,000 UAH, a complaint on a large contract is cheap against the value at stake and is refunded if you win; on a small one the 2,000 UAH floor makes it a considered decision.

And prepare the evidence before you file. With a three-working-day cut-off before the hearing and a 10-working-day review, there is no realistic chance to build the case once the complaint is in.

Related terms

• Law 922-VIII — Ukraine's Public Procurement Act
• Тендерна документація (tender documentation, Ukraine)
• Відкриті торги з особливостями (open tendering with peculiarities, Ukraine)
• Prozorro (Ukraine's public procurement system)

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