On 19 April 2020 the Law of Ukraine "On Amendments to the Law of Ukraine "On Public Procurement" and Some Other Legislative Acts of Ukraine on Improvement of Public Procurement" dd. 19.09.2019 No. 114-IX came into force, according to which the current Law was presented in a new version with the addition of significant innovations. At the same time, Section 6 "Procedure for restricted tenders" is expected to come into force 12 months after the Law comes into force.
The most important novelties of the Law are, in particular, the following conditions:
- as of 2022, tender committees will replace the authorized persons;
The possibility of creating a working group has been left open, but the decision of this group will only be advisory in nature, all responsibility rests only on the individual authorized person. It should be noted that the designated person is required, when using the e-procurement system, to enter their personal data into the e-procurement system and to update them regularly.
- the threshold for non-tender procurement has been lowered to UAH 50,000.00;
Purchasing goods and services from 50 000.00 UAH to 200 000.00 UAH. (up to UAH 1,500,000.00 for works) for public sector employees and up to UAH 1,000,000.00. (up to UAH 5,000,000.00 for works) for customers in certain business areas, will be held under a simplified procedure (without prior qualification, in accordance with Section 17 of the Law and in a shorter time than in open bidding).
In case of procurement up to UAH 50 000.00, customers need to publish a report on the purchase. In this case, the period for publication has been extended from 1 calendar day to 3 working days. The term for publishing the report on the contract performance has also been extended to 20 working days.
- a tool to combat dumping has appeared - the concept of "abnormally low price" has been introduced.
Abnormally low price - the price of the most economically advantageous offer according to the results of the auction, which is less by 40 or more percent of the arithmetic mean value of the price of tender offers of other participants at the initial stage of the auction and/or less by 30 or more percent of the next price of the tender offer according to the results of the conducted electronic auction.
- a new concept of "life cycle cost" has been created, which is the sum of the cost of the object of purchase or a part thereof (lot) and other costs that the customer bears directly when using, maintaining and terminating the object of purchase (e.g. energy consumption, maintenance, disposal). The legislator invites the customer to specify in the tender documentation the methodology for calculating the life cycle cost, including the assessment criteria themselves. However, during the evaluation of proposals (together with the life cycle cost) the confirmation of criteria - both documentary at the time of the proposal and actual at the use of the object of procurement - can be a problematic issue.
- the list of eligibility criteria for participants has been expanded;
In particular, the customer may now require proof of financial capability to deliver the item of purchase from the participant.
- the obligatory reason for rejection of the participant was the presence of tax and fee arrears (mandatory payments);
However, there are exceptions, when the participant has carried out activities on installments and deferral of such debt in the manner and under conditions determined by the legislation of the country of registration of such participant.
- the customer may decide not to participate in the procurement procedure and may reject the participant's tender offer if the customer has had a negative experience of cooperation with the participant within the last three years.
- there is an opportunity to correct mistakes in the tender offer of participants;
But the errors can be corrected only in the documents confirming qualification requirements and, in the documents, confirming the right to sign the tender proposal and the procurement contract. In addition, it is possible to correct only those inconsistencies found by the customer, and if the inconsistencies found by the participant or other persons, the law no longer provides for the possibility of correcting them;
- an opportunity to extend the period for the conclusion of the procurement contract to 60 days is provided;
- the grounds for applying the negotiation procedure have been expanded:
- termination of the purchase contract through the fault of the participant for a period sufficient to conduct the tender, in the amount not exceeding 20 percent of the amount specified in the contract, which is terminated through the fault of such participant;
- an appeal against the procurement process;
- within 3 years, the purchase of goods, the contractor or the service provider from the same supplier, for a sum not exceeding 50 percent, if it is proven that the replacement would result in the purchase of goods with other specifications, which would lead to incompatibilities related to operation and maintenance.
- an increase in the unit price to 10 percent is allowed no more than once every 90 days from the signing of the purchase agreement;
The restriction does not apply to contracts for the purchase of gasoline and diesel fuel, gas, and electricity.
