PRICE IS THE MAIN CRITERION FOR GOODS, WORKS AND SERVICES FOR WHICH THE CONTINUOUS MARKET EXISTS

The Standing Administrative Body on examination of complaints about law violations in the matter of public procurement of the Antimonopoly Committee of Ukraine received a complaint about the actions of the municipal establishment General education sanatory boarding-school №3 of the Dnipropetrovsk Regional council within a procurement procedure – “DK 021:2015: 55500000-5-Refectory services and catering services. DK 016:2010: 56.29.2- Refectory services”.

The expected cost of the procurement is 2,745,700 hryvnas.

The complainant is limited liability company TOV Laverna Smak (Novomoskovsk, Dnipropetrovsk Oblast) reported about the establishment of the discriminative requirements in the tender documentation by the customer.

In the light of the analysis of the complaint the Body of the AMCU stated that the customer has to amend the corresponding requirements.

Thus, the complainant stated that the customer established the following tender offers evaluation criteria and their specific weight valued at percentage: “cost” – 70; “experience in the area under the procurement item” – 30”. Taking into account that the procurement item is works and goods, which are produced, performed, or provided not under the separately worked out specification (a project plan), for which the continuous market exist, it is essential to state that in such purchases the cost must be the only criterion for the determination the most economically efficient offer.

During the consideration of this matter, the Body of the AMCU established the following. According to paragraph 1 of Article 28 of the Law of Ukraine “On public procurement” the evaluation of tender offers is performed automatically by e-procurement system based on criteria and methods of evaluation specifies in tender documentation by a customer, by the use of an electronic auction.

If the announcement of the procurement procedure is published in accordance with paragraph 4 of Article 10 of this Law, evaluation must be performed only for the offers that were not rejected under this Law.

Evaluation criteria are:

– if the item of procurement is works and goods, which are produced, performed, or provided not under the separately worked out specification (a project plan), for which the continuous market exists, – cost;

– if the item of procurement has complex and specialized essence (including advisory services, researches, experiments or developments, R&D projects), – cost with other evaluation criteria, in particular, such as terms of payment, deadline, warranty, maintenance, technology transfer, and training of administrative, scientific and industrial personnel.

The customer hasn’t proved and documentary confirmed the existence of grounds for the application of other criteria except of price, in particular, that the item of procurement is submitted with separately worked out specification (a project plan) for which the continuous market exists.

Considering the above, customer’s actions do not comply with the requirements of paragraph 4 of 22 Law, according to which tender documentation must not contain requirements that restrict competition and result in discrimination of participants, and also violates the principles of procurement, – participants’ non-discrimination and openness and transparency of all stages of procurement.

Considering the above, on 03/01/2017 the Body of the AMCU compelled the municipal establishment General education sanatory boarding-school №3 of the Dnipropetrovsk Regional council to amend tender documentation for the refectory services procurement.

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