THE AMCU COMPELLED THE VILLAGE COUNCIL IN LVIV OBLAST TO CANCEL WORKS PROCUREMENT PROCEDURE FOR BUILDING OF PRE-SCHOOL FACILITY
To the Standing Administrative Body on examination of complaints about law violations in the matter of public procurement of the Antimonopoly Committee of Ukraine appealed collective manufacturing enterprise (KVP) Enarhomontazh (Lviv).
The company reported about the violation of the procurement procedure police by the Sokilnyky village council of Pustomytiv district in Lviv Oblast – “works on the project “Building od a pre-school facility for 75 people in village Sokilnyky of Pustomytiv district in Lviv Oblast (revaluation of work cost estimate onto construction competion)” [Advertisement № 152324, published on the website of the Authorized authority, bulletin of 28/07/2016 № 142 (28/07/2016)] with the expected cost 17,189,078 hryvnas.
KVP Enarhomontazh didn’t agree with the reasons of their offer rejection.
The following was established after the investigation of the complaint by the Body of the AMCU.
The customer demanded all participants to provide assurance in the form of implicit and irrevocable guarantee. As the customer established, KVP Enarhomontazh provided the nominal banker guarantee so their offer was rejected because it failed to meet the documentation requirements.
The Body of the AMCU found that the complainant’s offer contains banker guarantee, consequently in this section the complainant’s offer was rejected rightfully.
The next reason for rejection of the complainant’s offer was inapt calculation of the contract price on risk pooling and the dropping of finances on the backing of extra cost related to the inflation development.
The Body of the AMCU found that the complainant’s offer in the section of finances for risk pooling failed to meet the documentation requirement, and therefore was rejected rightfully; as to the dropping of finances on the backing of extra cost KVP Enarhomontazh didn’t break documentation requirements, and therefore was rejected illegally.
In addition to these, the customer required the confirmation of the participant’s correspondence to the qualifying requirements. The reason for rejection the complainant’s offer in this section was that the company didn’t specify in the provided certificate about the availability of means for quality control of the main constructional materials and works, which are the scope of the procurement and/or about the availability of running contacts on provision of appropriate services of quality control with specialized organizations.
The Body of the AMCU found that the tender documentation didn’t contain such requirement, and thus KVP Enarhomontazh didn’t break documentation requirements in this section, so the complainant’s offer was rejected illegally on the above ground.
Besides, the Body of the AMCU established that the customer applied the discriminative approach during the consideration and evaluation of tenderers’ offer, namely: the complainant’s offer was rejected, and with that the offer of TOV VIP Budivelna Compania was accepted to the evaluation procedure though it failed to meet the documentation requirements.
The customer violated the complainant’s right for objective and impartial consideration of his offer. Stated customer’s actions are the Customer complainant violated the right to an objective and impartial review of the program. These customer action is a violation of the principles of public procurement under the Article 3 of the Law of Ukraine “On public procurements”, namely – non-discrimination of participants, objective and impartial evaluation of tender offers.
According to the results of complaint investigation the Body of the AMCU compelled the Sokilnyky village council of Pustomytiv district in Lviv Oblast to cancel the procurement procedure.
In addition to the above, the complainant in his complaint stated that, in his opinion, the customer entered into a conspiracy with the winning tenderer.
We would like to note that not for the first time tenderers note the following in their complaints submitted to the authority of appeal.
According to the section 17 of the Article 1 of the Law of Ukraine “On public procurements” the AMCU is a body of appeal in public procurements sphere.
Please note that the consideration of issues concerning the conspiracy aren’t applied to the Standing Administrative Body on examination of complaints about law violations in the matter of public procurement of the Anti-monopoly Committee of Ukraine. Therefore, in case of complaining about a conspiracy between the parties and between the member and customer to the authority of the AMCU, this complaint will not be considered by a body.