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Law of Ukraine «On Public Procurement» update Nov 2014

LAW OF UKRAINE

On Public Procurement
(As amended by the Laws
No. 1206-VII dd. April 15, 2014
No. 1234-VII dd. May 06, 2014
No. 1586-VII dd. July 04, 2014
No. 1669-VII dd. Sept 02, 2014)

This Law establishes the legal and economic foundations for the procurement of goods, works and services to meet the needs of the State and the territorial community.

The goal of this Law is to create a competitive environment in the field of public procurement, to prevent corrupt practices in this field, to develop fair competition.

SECTION I. GENERAL

Article 1. Definition of Principal Terms

1. The terms listed herein below shall have the following meanings in this Law:

1) «acceptance of a bid or a price quotation» (proposals as a result of the application of the negotiated procedure) shall be understood as the acceptance by the procuring entity of a tender proposal or a quotation found to be most economically advantageous as a result of the evaluation (as a result of the application of the negotiated procedure), and granting of the consent to assume liabilities for the payment for the procurement object or a part thereof (a lot). A tender bid or a quotation, or a bid as a result of the application of the negotiated procedure shall be deemed accepted, if the procuring entity has provided the bidder with a written notice of acceptance of the said bid within the timeframe specified by this Law;

2) «a general procuring entity» shall be understood as a state authority, a public or a communal institution or an organization nominated by the Cabinet of Ministers of Ukraine, the Council of Ministers of the Autonomous Republic of Crimea, local state administrations or executive bodies of local councils respectively as responsible for organizing and performing procurement procedures on the basis of framework agreements in the interests of procuring entities in accordance with this Law;

3) «public procurement» (hereinafter referred to as the «procurement») shall be understood as the procurement of goods, works and services by the procuring entity in accordance with the procedure prescribed by this Law;

4) «procurement contract» shall be understood as a contract that is concluded between the procuring entity and the bidder based on the results of the procurement procedure and provides for the provision of services, the performance of works, or the acquisition of the ownership of goods;

5) «tender documents» shall be understood as the documents developed and approved by a procuring entity, published for open access and provided by the procuring entity free of charge to individuals and legal entities in the course of the bidding (tender). The tender documents shall not be an object of copyright and/or related rights;

6) «electronic means» shall be understood as hardware and software used for creation, processing, transmission and storage of data and documents in electronic form;

7) «procurement contract performance security» shall be understood as the provision of the procuring entity by the bidder with a guarantee of the performance of its undertakings under the procurement contract, including the forms of security, such as a surety commitment, a guarantee, a pledge, a caution deposit, contractual penalties, a deposit;

8) «bid security» shall be understood as the provision by a bidder of a guarantee to the procuring entity for performance of its undertakings in connection with the submission of the bid, including such forms of security as a surety commitment, a guarantee, a pledge, a caution deposit, and a deposit;

9) «procuring entities» shall be understood as public authorities and bodies of local self-governance, as well as legal persons (enterprises, institutions, organizations) and their associations that provide for the needs of the State or a territorial community, if such activities are not carried out on the industrial or commercial basis, and if they have any of the following characteristics:
 the legal person is a recipient of budgetary funds authorized by a budget administrator to implement measures envisaged in a budgetary programme within such funds allocations;

 public authorities or bodies of local self-governance, or other procuring entities have the majority of votes in the supreme governing body of the legal entity;

 in the legal entity’s chartered capital the state or a community has a share (equity shares) of more than 50 percent.

The entities specified in Article 1, Section 1, Paragraph 1 of the Law of Ukraine “On Peculiarities of Procurement in Certain Spheres of Economic Activity” shall be also deemed as procuring entities;

10) «qualification documents» shall be understood as documents developed, approved, published for the open access and provided by a procuring entity free of charge to individuals and legal entities in the course of the pre-qualification;

11) «qualification proposal» shall be understood as a proposal that is submitted to the procuring entity by participant in the pre-qualification procedure according to requirements of qualification documents;

12) «tender committee» shall be understood as officers (officials) of the procuring entity (general procuring entity) appointed to be in charge of the organization and performance of procurement procedures hereunder;

13) «procurement monitoring» shall be understood as the systemic observation of the procuring entity’s performance of the procurement procedures in order to analyze their efficiency and due adherence to the law in the field of public procurement;

14) «the most economically advantageous proposal» shall be understood as the bid that meets all the criteria and conditions specified in tender documents and found to be the best bid as a result of the evaluation of tender bids in accordance with Article 28 hereof;
15) «announcement of a procurement procedure» shall be understood as an announcement of the open procurement procedure, an announcement of the two-stage procurement procedure, an announcement of the pre-qualification procedure, a request for price quotations; the notice of the negotiated procurement procedure;

16) «announcement of procurement procedure results » shall be understood as an announcement of results of procurement procedure, a notice of results of the pre-qualification, the information about results of the procedure of the request for quotations, the information about results of the negotiated procurement procedure, a cancellation notice or an annulment notice of the procurement procedure, a cancellation notice of the negotiated procurement procedure;

17) «Complaint Review Authority» shall be understood as the Antimonopoly Committee of Ukraine;

18) «the successful bidder» shall be understood as a participant, whose bid or a price quotation has been found as the most economically advantageous and accepted in case of the bidding (tender), or a participant, whose bid is accepted as a result of the negotiated procedure;

19) «a related person» shall be understood as a person that meets any of the following characteristics:

a legal entity that exercise control, or is controlled by a participant in the tender procedure, or is subject to a joint control with such a participant in the procurement procedure;

a natural person or members of his/her family controlling a participant in the procurement procedure;

an officer (official) of a participant in the procurement procedure shall be understood as a person authorized to perform legal acts on behalf of the participant procurement procedure aimed at establishing, modifying or terminating relations governed by the civil law, and family members of the said official;

natural persons — members of the tender committee of a procuring entity and / or their family members that control procurement procedure participants or authorized on behalf of the participant in the procurement procedure to perform legal actions to establish, modify or suspend civil-law relations.

The control shall be understood as a possibility of decisive influence or a decisive influence on the economic activities of a participant in the procurement procedure exercised either directly or via a larger number of related persons or legal entities, in particular, through the right of possession and the right of use of all their assets or a significant portion, the right of decisive influence on their composition, on voting results, and also transactions execution that enable the possibility to determine the conditions of economic activity, to give binding directives or to serve as the managing body of the participant in the procurement procedure or the shareholding (unit, block of shares), which is at least 25 percent of the share capital of the participant in the procurement procedure

For a natural person, the total shareholding in the participant’s authorized capital shall be determined depending on the scope of corporate rights held by such an individual, his/her family members and legal entities controlled by such an individual or his family members.

For the purposes hereof, family members shall be understood as spouses, children, parents, brothers and sisters, grandparents, grandchildren, adoptive parents, adopted children, as well as other individuals, provided that they reside on a permanent basis together with the related party and maintain common household with the said party;

20) «services» shall be understood as any object of procurement (other than goods and works), in particular, transportation services, technological and scientific research, the research and development activities, the medical and public amenity services, the leasing, the rental (lease), as well as financial and consultancy services, and maintenance activities;

21) «procurement object» shall be understood as goods, works and services that are procured by a procuring entity within a single procurement procedure, and for which participants are permitted to submit bids (qualification proposals, quotations), or proposals for negotiations (in case of the application of the negotiated procedure). The procurement object shall be defined by the procuring entity in accordance with the procedure prescribed by the Authorized Body. At least two proposals / bids shall be received within a procurement procedure, unless the procuring entity applies the negotiated procurement procedure;

22) «a bid» shall be understood as a proposal concerning the procurement object or a part thereof (a lot) submitted by a bidder to the procuring entity in accordance with requirements of the tender documents;
23) «works» shall be understood as the design, the construction of new (the expansion, rehabilitation, major repairs, and restoration of existing) objects and structures used for manufacturing and non-manufacturing purposes, the standard-setting activities for construction, the geological prospecting, the technical refurbishment of existing enterprises, as well as the ancillary services for works, including land surveying works, drilling, seismic surveys, aero- and satellite photography and other services that are included in the estimated cost of the works, if the cost of such services does not exceed the cost of the relevant works;

24) «framework agreement» shall be understood as a transaction entered into by one or several procuring entities (by the general procuring entity) in writing in accordance with the procedure prescribed by this Law with one or several procurement procedure participants for the purposes of the specification of principal conditions of the procurement of specific goods and services for the entry into the relevant procurement contracts during the validity period of the framework agreement;

25) «validity period of a bid or of a price quotation» shall be understood as the period specified by the procuring entity in tender documents or the request for quotations, during which the participant does not have the right to amend its bid or quotation;

26) «complainant to the Complaint Review Authority» (hereinafter referred to as the «complainant») shall be understood as an individual or a legal entity that has applied to the complaint review authority for protection of its/his/her rights and legitimate interests against a decision, an action or a failure to act by the procuring entity, which are contrary to the legislation in the field of the public procurement, and which have resulted in a violation of the right or a legitimate interest of such a person;

27) «goods» shall be understood as products, objects of any type and designated purpose, including raw materials, manufactured goods, equipment, technologies, objects in solid, liquid, or gas form, as well as services associated with the supply of goods, if the cost of such services does not exceed the cost of the goods themselves;

28) «procurement procedure» shall be understood as the implementation of a competitive selection of bidders in order to determine the successful bidder (in competitive procedure) in accordance with the procedures established by this Law (except for the negotiated procurement procedure);

29) “Authorized Agency” shall be understood as the Ministry of Economic Development and Trade of Ukraine;
30) «a participant in the pre-qualification procedure» shall be understood as a natural person, including sole traders, a legal entity (resident or non-resident) that confirmed its intention to participate in the pre-qualification procedure and/or submitted a qualification proposal;

31) «a participant in the procurement procedure» (hereinafter referred to as the «bidder») shall be understood as an individual or a legal entity, which has confirmed his/its intent to take part in the procurement procedure in written by submitting a tender bid, or a quotation, or took part in the negotiations in the case of the negotiated procedure;

32) «price quotation» shall be understood as a proposal in respect of the procurement object or a part thereof (a lot) submitted by a bidder to the procuring entity on the basis of the request for price quotations;

33) «a part of procurement object (a lot)» shall be understood as a part of goods, works or services determined by the procuring entity, for which bidders are permitted to submit their tender bids, or bids, or price quotations, or proposals for negotiations in case of the application of the negotiated procedure. At least two proposals or bids must be submitted for each specific part of a procurement object (each lot) in a procurement procedure, except for the events when negotiated procurement procedure is applied by the procuring entity.

On Public Procurement
LAW OF UKRAINE (updated of Nov 2014)
http://www.ua-tenders.com/rubrics/download/ (full text)

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