WHAT TO APPEAL TO THE AMCU, AND WHAT NOT TO APPEAL?

The last week on 09/11/2016 the Standing Administrative Body on examination of complaints about law violations in the matter of public procurement of the Antimonopoly Committee of Ukraine compelled the municipal institution Odessa regional clinical hospital (Odessa) to cancel the procurement procedure of radiologic equipment.

On 21/10/2016 to the Antimonopoly Committee of Ukraine appealed the action of the Municipal institution one of the tenderers TOV Medihran Ukraina (Kyiv).

The procurement procedure was set in motion on 26th August 2016. The expected cost 11,750,000 hryvnas.

The complainant stated that he disagrees with the customer’s decision about the admission to the auction the participants of the procedure TOV Livin and TOV Medgarant (the complainant, TOV Livin and TOV Medgarant submitted complaints) due to the fact that offers of these participants failed to meet the documentation requirements.

Thus, instead of the required documentation lease, TOV Medgarant provided contract storage.

Subsequent to the results processing of the complaint, the Body of the AMCU found that the offer of TOV Medgarant contains a certificate of availability of equipment and material and technical base, which specifies that the participant has a rented warehouse. Also, the offer of TOV Medgarant contains a contract for storage and auxiliary services.

With that, this contract doesn’t confirm the availability of a rented warehouse within the equipment of TOV Medgarant.

Thus, the offer of TOV Medgarant doesn’t provide the lease on a warehouse, so it does not meet the documentation requirements in this section.

With regard to the legislation on public procurement, the tender offer of TOV Medgarant failed to meet the documentation requirements and therefore the customer municipal institution Odessa regional clinical hospital had to reject it and cancel the procurement procedure due to the fact that less then two offers were accepted for the evaluation.

By applying the discriminative approach during the consideration of the participants’ offers (by rejecting the complainant’s offer, but accepting the offer of TOV Medgarant”, which failed to meet the documentation requirements), the customer violated the right of TOV Medihran Ukraina for an objective and impartial consideration of his offer.

 Given the above, the Body of the AMCU compelled the municipal institution Odessa regional clinical hospital (Odessa) to cancel the procurement procedure of radiologic equipment.

With that, according to the complainant TOV Livin and TOV Medgarant didn’t confirm the medical and technical specifications of the goods, so their admission to the auction was illegal. In particular, TOV Medihran Ukraina states that both participants had the letters of guarantee in the offers composition from one company, and in the package of mammography system equipment from another manufacturer was offered without its original letter.

The customer required to provide the original of the letter of guarantee of the scope of procurement from the manufacturer or authorized by the manufacturer representative, dealer or retailer, in the quantity and terms specified by the documentation and tenderer’s offer.

The municipal institution Odessa regional clinical hospital stated that in support the participants provided corresponding letters of guarantee. The mammography system with computed radiography system (the part of the scope of procurement) – is a set of specific components, which, in its turn, form a single system. The customer didn’t require to provide warranty for all components of x-ray diagnostic systems and complexes as the complainant stated in his complaint.

Due to the fact that there were no requirements in the documentation to provide a letter of guarantee from manufacturers, in particular for the components of the mammography system with computed radiography system, the Body of the AMCU established that there are no grounds for the settlement of the complaint in this section.

Consequently, in this case the complaint of TOV Medihran Ukraina was redressed partially.

The legislation on public procurements provides that complaint must contain a justification of the presence of violated rights and statutory elements concerning the customer’s decision,  actions or inactions running contrary to the legislation on public procurements and due to which a right or legitimate interest of a person are violated.

The body of appeal considers a complaint and makes a decision on the grounds of the received with complaint information and information distributed in the electronic system of procurements.

Offered by the tenderers goods, works or services must meet the requirements specified in the tender documentation.

In the case, when the documentation doesn’t contain corresponding requirement to the components of the scope of the procurement, participants don’t submit these documents, and therefore it cannot be a ground for rejecting the offer.  Accordingly, the complaints about the absence within participants’ tender documentation of the documents, which weren’t required by the customer, won’t be redressed by the body of appeal.

 

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