AMCU ordered the Ministry of Defense of Ukraine to cancel the decision on determining the winner of the procurement procedure in two lots
On June 6, 2017 the privately owned company sewing association “Avitex” (Dnipro) applied to the Permanent Administrative Board of the Antimonopoly Committee of Ukraine for consideration of complaints about violations of legislation in the field of public procurement.
The complainant reported about the violation by the part of the customer – the Ministry of Defense of Ukraine, namely the procedure for the selection of participants in lots 5 and 6, and requested, in particular, to cancel the decision on rejection of his tender offer and the decision on determining the winners of the procurement procedure in lots 5 and 6 (Item of purchase – individual uniforms – windbreaker winter jacket).
As was established by the Antimonopoly Committee’s Board, the complainant’s proposals were rejected on the basis of clause 8 of part 1 of Article 4 of the Law of Ukraine “On the peculiarities of the procurement of goods, work services for the guaranteed defense needs”, namely that the proposal is rejected if the participant within one year before the date of conducting electronic auction has committed a violation of the same customer, in particular not complied with the provisions concerning the quality and / or time delivered goods – more than once.
The customer’s decision on the rejection of the selection of participant who committed the indicated violation is published on the official website of the customer on the day of detection of the violation, which specifies, in particular, the type, date and number of violations, the document confirming the violation and the unique number of the auction in the electronic procurement system.
The website of the customer contains information about the participants who committed the violation. At the same time, there is no data on when the indicated information is located, nor is there a confirmation that the information was drawn up by the relevant decision. The customer also failed to prove the fact that ‘Avitex’ LLC did not comply with the terms of the contract regarding the quality and / or the term of the supplied goods.
Thus, the AMC board concluded that the offers of “Avitex” were wrongly rejected by the customer.
PE “AviteX”, in particular, did not agree with the decision of the customer regarding the definition of LLC “TH MIK Trade” winner of the procurement procedure for lot number 6 for the following reasons. LLC “TH MIK Trade” filed a certificate about the availability of employees of the relevant qualification, their number and work experience. The indicated certificate contained information on one employee – the director of the enterprise, whereas in the tender documentation the customer demanded information about the availability of employees in the plural.
Consequently, the tender offer of LLC “TH MIK Trade” did not meet the requirements of the tender documentation of the customer.
According to the Antimonopoly Committee’s Board, by the elimination of defects in LLC “TH MIK Trade”, the customer violated the requirements of part 4 of Article 6 of the Law of Ukraine “On peculiarities of the procurement of goods, works and services for the guaranteed defense needs”.
On June 14, 2017 the AMCU Board ordered the Ministry of Defense of Ukraine to cancel the decision on rejection the tender offer of PE ‘Avitex’ in lots 5 and 6 and on determining the winners of the procurement procedure at the indicated lots.