After the end of the war in Ukraine, the issue of rebuilding the country will become topical. The state will have to rebuild factories, steel mills, airports, restore elements of infrastructure, and - in view of the scale of destruction in many cities - undertake housing construction investments.
As in Poland, tendering is a mandatory procedure for placing orders in the public sector. Pursuant to the applicable law, the vast majority of state-owned enterprises and other public entities, as a rule, must purchase services and goods necessary for the performance of their functions through tenders. This opens up broad prospects for domestic and foreign contractors / suppliers who wish to participate in government procurement.
From August 1, 2016, all purchasing procedures for all customers in Ukraine are carried out exclusively through the electronic ordering system Prozorro (prozorro.gov.ua). All information about public tenders is also posted on this platform, which is available free of charge. From here you can download the relevant announcements or analyze the tender documentation.
The Law of Ukraine "On Public Procurement" of December 25, 2015, No. 922-VIII, establishes equal conditions for participation in public procurement by residents and non-residents. At first glance, the conditions are simple and clear: the same rules for everyone, no restrictions and no benefits for the foreign participant, no matter what country he comes from. Naturally, however, there are certain differences related to, for example, submitting documents. In the case of foreigners, all documents must be apostille and submitted with a sworn translation. If the tender requirements include extracts from the state registers of Ukraine, the foreigner must provide extracts from similar registers in his country.
Among the conditions for participating in a tender, we often find additional requirements for a sufficiently long time of running a specific activity or documenting experience in a given field.
The tender consists of several stages and continues until the final winner is selected or all bids are rejected.
The main evaluation criterion according to the rules of the tender is the economic benefit. Therefore, the application with the lowest price is considered first. After determining the offer with the lowest price, the contracting authority has five days to study it. If the documentation of such a tenderer meets the other conditions of the tender, the contracting authority has the right to announce it as the winner without considering other offers. At this point, the tender procedure is considered completed.
If the tender with the lowest salary does not meet the contracting authority's requirements, it continues to evaluate all other applications. At this stage, not only the price and documentation submitted by the participants are analyzed, but also additional factors such as payment methods, warranty service conditions or operating costs that the ordering party will have to bear in a specific case.
After the contractor / supplier is selected, an official notice of the ordering party's intention to conclude a contract is published on the Prozorro platform. At the same time, the system informs all participants electronically about the results of the tender. Each of them has the right to obtain information about the terms of the selected offer from the contracting authority. The participants of the public procurement procedure may submit a complaint to the Authorized Commission at the Permanent Administrative Council of the Antimonopoly Committee of Ukraine if, in their opinion, the tender was conducted in violation of the law. In the event of the refusal to accept the complaint, the tender participant may demand that the tender be invalidated in court. The District Administrative Court in Kiev has jurisdiction in these matters. However, legal proceedings do not always make sense, because the examination of the case may take a relatively long time and does not suspend the performance of the contract with the selected tenderer.
A simplified ordering system is used for orders with a value of UAH 50,000 or less. The contract concluded with the contractor / supplier in this manner must, however, be published on the procurement platform. It should be added that during the war, for obvious reasons, the procedure of awarding public contracts was further simplified.
In general, the procurement procedure in Ukraine is quite logical and transparent, but of course it has its own specificity. Therefore, we advise those wishing to take part in public procurement to seek the help of specialists.
This entry contains general information about the legal issue discussed. It does not constitute legal advice or a solution to a specific case or legal problem. Due to the unique nature of each factual situation and the variability of the legal status, we recommend seeking legal advice from our law firm.