In continuation of our publications on this topic, we share with you our experience of assisting a participant and our regular client in challenging the terms of the tender documentation in one of the procurements.
In this procurement, the procuring entity required the tenderers to use software and components from certain manufacturers to provide services, despite the fact that in this particular case, the use of equivalent software and components by the tenderers does not technically affect the possibility and quality of service provision.
According to part 4 of Article 23 of the Law of Ukraine “On Public Procurement” (the “Law”), technical specifications shall not contain references to a specific brand or manufacturer or to a specific process that characterises a product or service of a certain business entity, and if such a reference is necessary, it must be justified and contain the expression “or equivalent”.
Quite often, procuring entities formally comply with this requirement of the Law in their tender documentation and specify the expression “equivalent”. However, tenderers should keep in mind that formal compliance with the requirement of the Law to specify this expression in the documentation, but without providing tenderers with a real opportunity to offer such an “equivalent”, cannot be considered compliance with the requirements of Article 23 of the Law and the requirements of the Law in terms of the prohibition of discrimination against tenderers, and therefore such a requirement should be challenged.
In addition, the tender documents contained a requirement for tenderers to provide a certificate from the manufacturer to confirm the status (competence) of the tenderers to provide the services required by the procuring entity. At the same time, the procuring entity did not justify the need to establish the above requirement in the documentation, nor did it define the concept of “manufacturer” and specify what is meant by the status (competence) of the participants. This did not allow the participants to properly prepare their proposals, and therefore, such a requirement is discriminatory towards/in relation to the participants.
We advise bidders to carefully study the requirements of the tender documentation and, in case of detection of requirements that may be arbitrarily interpreted by the procuring entity, to immediately challenge them, as after submission of the bids, this opportunity will be lost, which may lead to rejection of the bid by the procuring entity or appeal of the procurement results by other bidders.
Smartsolutions’ attorney Sergii Krutii analysed the tender documentation, identified the above discriminatory requirements and prepared a complaint to the AMCU Board to exclude such requirements. The AMCU Panel sided with the participant and the complaint was upheld.
As a result, the rights of Smartsolutions’ client to participate in the procurement of services with an estimated value of over UAH 11 million and to have the opportunity to become the winner were protected.
We recommend that bidders who believe that the procurement conditions are discriminatory do not neglect your right to defend and challenge discriminatory requirements of the tender documentation.
If you need advice on legal issues or protection of your interests in court, the Smartsolutions team will provide you with professional assistance and assistance.
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