Transparency International Ukraine has published the results of the study “Protecting one’s rights: how contesting procurement under the new rules works.”

The report was prepared within the USAID/UK aid project “Transparency and Accountability in Public Administration and Services/TAPAS.”

If a participant believes that a procuring entity has violated their rights, they can appeal to the AMCU Board. This possibility has existed for more than five years, but since April 19, 2020, the appeal rules have changed:

  • the participant can force the procuring entity to cancel their decision on cancelling the procurement and rejecting all offers;
  • if the AMCU Board satisfies the complaint, the complainant will receive the funds paid for its submission;
  • the complainant can no longer withdraw the complaint;
  • payment for filing a complaint is made exclusively online.

According to the results of the TI Ukraine’s study, these innovations have led to positive developments in contesting public procurement. First of all, the share of satisfied complaints has increased by more than 20%, whereas the shares of the rejected and not satisfied complaints, on the contrary, has decreased. The AMCU Board has also come to make decisions on complaints faster: the review time has been reduced from 20 to 17 days.

Of course, there are certain points that need to be improved, for example, complaints about cancellation which pose a number of problems. But in general, we see mostly positive consequences of changing the appeal rules.

Artem Davydenko

“Of course, there are certain points that need to be improved, for example, complaints about cancellation which pose a number of problems. But in general, we see mostly positive consequences of changing the appeal rules,” explains the coordinator of TI Ukraine’s research projects Artem Davydenko.

Even though businesses have begun to receive funds for satisfied complaints, complainants have paid more to the state budget in 2020 than planned.

“Unfortunately, all these positive developments can negate the recent changes that the Verkhovna Rada has adopted by draft law 5309. Businesses will be required to provide evidence of violations of their rights and interests when the essence of the complaint concerns the tender documentation — and this is not always possible. This innovation will allow the AMCU to manually select complaints for consideration and accordingly restrict participants access to the protection of their rights in public procurement,” sums up the deputy executive director for the implementation of innovative projects of TI Ukraine Ivan Lakhtionov.

Unfortunately, all these positive developments can negate the recent changes that the Verkhovna Rada has adopted by draft law 5309. Businesses will be required to provide evidence of violations of their rights and interests when the essence of the complaint concerns the tender documentation — and this is not always possible. This innovation will allow the AMCU to manually select complaints for consideration and accordingly restrict participants access to the protection of their rights in public procurement.

Ivan Lakhtionov