Ukraine: Discrimination In Tender Documentation: Ways To Overcome It

Last Updated: 23 May 2019
Article by Yulya Stusova and Artur Wolf

Unfortunately, this is not the news that clients include so-called discriminatory conditions into their tender documentation. It was used to "secure the victory" in a tender for a participant "friendly" to the client during the validity term of already ineffective Law of Ukraine "On Public Procurement".

The scheme worked as follows: conditions of tender documentation "were tailored for a specific company" so that these could be fulfilled only by the participants being "friendly" to the client. In most cases, such "specific" conditions were not able to affect the quality of the goods procured or the quality of the works performed/services provided. For example, tender documents on procurement of legal services in respect of representation of company interests in litigation could have had a condition requiring that an applicant company had at least 3‑ employees with "Ph.D. in Law" degree. Such simple manipulations allowed to "get rid of" unwanted participants and to secure victory in the tender for the "right" company.

Many specialists hoped for drastic changes in the public procurement system as a result of entry into force of the Law of Ukraine "On Public Procurement" in 2016. In particular, the new law was intended to ensure transparency and fair competition of tender participants. Assessment of changes that took place after the law entered into force demonstrates that the above expectations were partially met. Also, we can see positive trends that relate to ensuring of equal conditions to tender participants. Compared to previous periods, the number of those willing to "circumvent" the rules has decreased, but many clients still has been trying to "influence" tender results by including discriminatory conditions, "tailored" for a particular participant, into the tender documentation.

At the same time, considering recent experience, such violations can and must be challenged. Effective legislation envisages several possible options to respond to certain actions of the client. To begin with, one can appeal to the client and request to eliminate violations committed in terms of procurement procedure. If such a request fails, one can apply to the Antimonopoly Committee of Ukraine and thereafter to the court in order to protect one's rights.

A participant willing to "complain" against the discriminatory conditions of the tender documentation shall be prepared for the financial expenditures that arise from the appeal. While the appeal to the client is free of charge, consideration of a claim by the Antimonopoly Committee of Ukraine and the court is the subject to certain fees. In particular, the fee for consideration of a claim by the AMCU amounts to UAH 5K in case of procurement of goods or services and UAH 15K – in case of the procurement of works. Thus, before filing a claim to AMCU or to a court to challenge "discriminatory nature" of a respective tender condition, one should assess the chances of a claim success.

In the first place, it is necessary to understand the nature of the principle of non-discrimination and what conditions can be considered discriminatory. The European Court of Human Rights defines discrimination as a difference in treatment of persons being in a similar or same situation. Respective findings of the Court can be found in the decision in case No. 42184/05 "Carson and Others v. the United Kingdom" dated 16/03/2010 and the decision in case No. 13378/05 "Burden v. the United Kingdom" dated 29/04/2008.

The principle of non-discrimination of participants is enshrined in Art. 3 of the Law of Ukraine "On Public Procurement" (hereinafter – the Law). Art. 5 of the Law expressly states that the clients shall ensure free access to the information on procurement to all participants as required by this Law and may not establish discriminatory requirements. Art. 22 of the Law prohibits tender requirements that limit competition and lead to discrimination of participants.

Given that the Law of Ukraine "On Public Procurement" does not provide for a list of conditions that may be viewed as discriminatory, one should be guided by the established practice of the Antimonopoly Committee of Ukraine and the judicial practice in order to assess the chances of a claim success.

Having analyzed decisions of the Permanent Administrative Board of the Antimonopoly Committee of Ukraine in respect of consideration of claims related to violations of public procurement law, we may state that "specific" requirements related to a procurement item, which can be fulfilled only by one participant/limited circle of participants, and provided they do not affect the quality of goods/works/services (their insufficient justification or even inexpediency), shall be deemed as discriminatory.

Following decisions of AMCU Board can be referred to as an example:

  • Decision No. 10119 dated 02/10/2018 which upheld the claim filed by a participant to the procurement of wire products (welding electrodes); in this case here AMCU concluded that the client set unjustified specific technical parameters related to the procurement item. AMCU substantiated its decision by the fact that the client set very specific requirements in respect of the procurement item (operating temperature, special features of the product structure) in the tender documentation, which could not be met by an average manufacturer cumulatively. At the same time, ESAB AB (Sweden) was the only manufacturer globally which could meet these conditions. Therefore, AMCU concluded that the specified conditions violated the principle of non-discrimination in the meaning of public procurement law. AMCU made similar conclusions regarding unjustified specific requirements in its decision No. 4377‑r/pk‑pz dated 04/07/2017.
  • The decision dated 17/09/2018 supported a claim filed by a participant to the procurement of lubricants; here the AMCU concluded that the client established unjustified condition related to obtaining of mandatory approval for quality confirmation documents specifically from the state enterprise – Kharkiv Engine Building Design Bureau. AMCU stated that the foregoing requirement was discriminatory, since the client did not prove the necessity of obtaining the approval from the specified company.
  • The decision No. 1758‑r/pk‑pz dated 04/04/2017, whereby the authority upheld a claim brought by a participant to the procurement of asphalt concrete mix; here the AMCU concluded that the client included an unjustified requirement, according to which location of a plant/loading station of a participant should have been located in Kyiv City or in the suburban area up to 10 km from Kyiv City boundaries". AMCU found such requirement to be discriminatory, since the client did not prove the necessity to locate the plant/station of a participant within the specified area.
  • The decision No. 9891‑r/pk‑pz dated 25/09/2018 which upheld claim submitted by a participant to the procurement of solid fuel based on the fact that the client set the unjustified requirement which obliged a participant to have available in stock at least 50% of the coal rank, which was the subject to the procurement. AMCU found respective requirement to be discriminatory in relation to the tender participants, including the claimant.

Judicial practice in this category of cases shows that courts apply the approach similar to the one used by AMCU, when resolving the cases related to discriminatory nature of conditions in the tender documentation. It should be noted separately that in terms of the court proceeding participants provide their arguments to support their appeal against AMCU decision made under participant's claim against the tender results.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions