According to the latest open data published in the 2022 report of the Ministry of Economy of Ukraine, more than 250 non-residents from 46 countries took part in public procurement in Ukraine. The largest number of contracts was concluded with the Republic of Poland (UAH 2.09 billion).
These statistics do not include subsidiaries and branches of foreign companies in Ukraine, as they are registered as Ukrainian legal entities.
The Ukrainian law “On Public Procurement” establishes equal conditions for the participation of non-residents and Ukrainian companies in public procurement procedures, which means that any discrimination is prohibited. The only exceptions are the ban on the participation of Russian and Belarusian companies – companies that are residents or have ultimate beneficiaries in these countries. In addition, goods, works and services originating in Russia or Belarus cannot be admitted to public procurement.
Electronic ordering system
The public procurement procedure, creation, placement, publication, exchange of information and documents in electronic form takes place through the electronic public procurement system.
Information on public procurement in Ukraine is publicly available on the official website: www.prozorro.gov.ua, where you can find and download relevant notifications and tender documentation for free.
The Prozorro system consists of a Central Database and accredited electronic platforms.
Currently, there are 13 authorized electronic platforms in Ukraine. Each of the authorized electronic platforms provides registration of participants, automatic placement, receipt and transmission of information and documents during orders, use of services with automatic exchange of information, collection of analytical data, information about competitors.
Registration of a non-resident on an accredited electronic platform
Participation of a non-resident in public procurement is possible only if he or she is registered on one of the accredited electronic platforms.
When registering a non-resident, you are offered a choice from a list of countries and company registers available in such countries (commercial registers, court registers, etc.) with which the Ukrainian electronic procurement system is integrated. This allows you to automatically identify a company from such a country in order to create an account.
Public procurement announcements
Contract notices are published in Ukrainian. Notices of competitive tender procedures are additionally published in the electronic public procurement system in English, if the expected value of the contract exceeds the amount equivalent to:
- for goods and services – EUR 133 thousand;
- for construction works – EUR 5,150 thousand.
The tender documents specify the qualification requirements for bidders, the technical, qualitative and quantitative characteristics of the ordered goods (works, services), as well as other conditions of the tender procedure (certain specific requirements that must be met in order to successfully submit a tender offer and win the tender).
The contracting authority requires that the participants in the procurement procedure provide documented information on their compliance with the qualification criteria.
Submission and signing of a tender offer
A tender proposal is submitted electronically by filling in electronic forms with separate fields containing information about:
- price,
- other evaluation criteria (if they have been determined by the contracting authority),
- information from the bidder about meeting the qualification criteria,
- as well as by uploading the necessary documents required by the contracting authority in the tender documentation.
In practice, in particular due to the inconsistent interpretation of the regulations, contracting authorities require a qualified electronic signature to be provided with a tender offer when it is submitted via an electronic platform.
According to the published information of the Ministry of Economy of Ukraine, non-residents will be able to submit a bid without an electronic signature, although in this case the question of submitting originals or copies of electronic documents remains, if such requirements are specified directly by the contracting authority.
In addition, prior to the mutual recognition of electronic trust services between Ukraine and the EU, Ukraine recognizes the status of a qualified electronic signature or electronic seal used by European qualified providers in the provision of electronic trust services and entered into the list of certified means maintained by the European Commission in accordance with Article 31 of Regulation (EU) No 910/2014 of the European Parliament and of the Council of 23.07.2014. However, this legal framework requires practical and technical implementation.
Appeal against discriminatory requirements of the tender documents
The tender documents should not contain requirements that restrict competition and lead to discrimination against participants.
In practice, the contracting authority may set specific requirements in the tender documentation that actually prevent participation in a given contract. For example, these are technical requirements of a specific nature specific to only one supplier, in the absence of an objective need in this respect.
Protection of suppliers’ interests
The rights and legitimate interests of the supplier in participating in public procurement procedures are protected by requesting the contracting authority to amend the tender documents and remove discriminatory requirements, as well as by appealing against the terms of the tender documents to the Public Procurement Complaints Committee established by the Antitrust Committee Ukraine.
Despite the certainty and transparency of the regulations, in the context of constant changes in the applicable legislation, the participation of non-residents in public procurement requires a detailed analysis of the local risk, an examination of the contracting entity and the conditions of a specific contract.
The fact that the contracting entity has set certain “special” qualification requirements for the supplier and the subject of the contract at the stage of the contract notice may indicate the existence of discriminatory motives on the part of such a potential contracting entity. The practice of participating in public procurement requires the involvement of experienced lawyers to ensure compliance with the procedures provided for by law.
If you are considering participating in the public procurement procedure in Ukraine, our law firm offers comprehensive legal assistance and advice in this area – please contact us.
For further information, contact:
Yevgen Motrych, Barrister
Gorazda, Świstuń, Wątroba i Partnerzy adwokaci i radcowie prawni, Kraków
e:lp.moc.wsg@hcyrtom.negvey
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