Appealing against discriminatory requirements in public procurement

Public procurement is a tool that is supposed to ensure fair competition, efficient use of budget funds, and equal access to public contracts for businesses. However, in practice, contracting authorities sometimes set discriminatory conditionsThe lawful right of bidders to participate in a tender is not limited to certain participants or to "tailor" the tender to a particular company. In such cases, participants have the legal right to appeal against discriminatory requirementsto defend justice and their interests.

⚖️ What are discriminatory requirements?

The terms of the tender documentation are recognized as discriminatory if they:

• violate the principle of equal treatment of participants;

• unrelated directly with the subject of procurement;

• create unjustified advantages for individual companies;

• make it impossible for other potential suppliers to participate.

Typical examples:

• the requirement to have experience in fulfilling identical contracts with by specific customers;

• setting excessively narrow product specifications;

• requirement to confirm experience in a particular industryalthough this does not affect the quality of the service;

• availability requirement certificatesthat are not provided for by law;

• establishing requirements for locations of the company (for example, only in a certain region).

Such restrictions contradict Article 5 of the Law of Ukraine "On Public Procurement"which guarantees fair competition and equal treatment of all participants.

🧾 Legal grounds for appeal

The Law on Public Procurement (Article 18) provides for a mechanism for appealing against actions or omissions of the contracting authority to Antimonopoly Committee of Ukraine (AMCU).
The reason may be:

1. violation of the procurement procedure;

2. establishing discriminatory requirements in tender documents;

3. unreasonable rejection of the bidder's proposal.

The AMCU considers such complaints within 15 business days, and its decision is mandatory for execution.

🕒 Time limits for filing a complaint

The deadlines for submission depend on the stage of the procurement procedure:

• before the deadline for submission of tender proposals - if the terms of the documentation are disputed;

• within 10 days from the moment the decision on determining the winner is made public - if the rejection or results are appealed.

It is important to file a complaint on time because the missed term cannot be renewed.

🧑‍💼 How to file a complaint

A complaint to the AMCU is filed by in electronic form through the ProZorro system. It should contain:

1. The name of the customer and the number of the procurement procedure.

2. The essence of the violation is which requirements are discriminatory.

3. References to the violated legal provisions.

4. Documents and evidence confirming the fact of discrimination.

5. A request to the customer (for example, to remove restrictions or make changes to the documentation).

You should also pay fee for filing a complaint:

• 0.3% of the expected value of the procurement item (but not less than UAH 2,000 and not more than UAH 85,000).

📑 Example of a practical situation

The company supplied medical equipment and decided to participate in a tender. The customer demanded a certificate issued by only one organization in Kyiv. Other companies could not obtain it.
The participant filed a complaint with the AMC, stating that the requirement not provided for by lawIt does not affect the quality of the goods and limits competition.
The AMCU recognized the requirement as discriminatory and ordered the procuring entity to amend the tender documents.

💡 Business tips

1. Analyze the documentation carefully. Even seemingly insignificant details can become a barrier to participation.

2. Contact our lawyers for advicespecializing in public procurement - they will help to identify discriminatory conditions even before submitting a proposal.

3. Don't be afraid to file a complaint. An appeal is a legal mechanism for protecting your rights, not a conflict with the customer.

4. Document everything. Correspondence, official inquiries, copies of tender documents - all of this can be used as evidence in the process.

5. Control the deadlines. Even the most well-founded complaint will be meaningless if it is filed late.

⚙️ The role of professional legal support

Protection of rights in public procurement requires in-depth knowledge of the law and practice of the AMCU. Lawyers of the firm AxelLegal have a successful track record in supporting tender procedures and protecting bidders facing discriminatory conditions.
We are helping:

• conduct a legal audit of tender documents;

• prepare a reasoned complaint;

• support the proceedings at the AMCU;

• restore the violated rights and ensure participation in procurement on equal terms.

🔍 Conclusion

Discriminatory requirements in tenders are not only a violation of the law, but also a real obstacle to the development of fair competition. But every business has effective tools to protect itself.
A timely response, a competent legal position and the support of an experienced lawyer can not only eliminate injustice, but also strengthen the company's reputation as a reliable participant in public procurement.