Appealing the Medicinal Product Procurement Procedure. Recommendations of the Antimonopoly Committee of Ukraine

Appealing the public procurement procedure is an important part of procurement process and a tool of protection by procurement participants of their rights and legal interests against decisions, actions or omission of a customer which are contrary to the legislation in the area of public procurement and in consequence of which a right or legal interests of such participants were violated.

Within the public procurement appealing procedure the customer is not allowed to take any actions and make any decisions regarding procurement except for cases aimed at removing the violations mentioned in the complaint. Thus, all procurement process gets in fact suspended. Worse is if such suspending takes place not due to objective reasons but considering gaps in the legislation or clear position of state authorities, especially if it is about procurement of medicinal products as a special and socially important product.

It is well known that the significant number of complaints received by the permanent administrative group of the Antimonopoly Committee of Ukraine (as an appeal body) on consideration of complaints on violations of legislation in the area of public procurement deals with discriminatory conditions of tender documents. One of the last reports on the group work stated that only in February 2018 discriminatory terms in tender document totalled UAH 1,408,823,000.

Within medicinal product public procurement process such complaints are often submitted regarding discriminatory terms in tender documents in part of determining a procurement subject, namely uniting a lot of medicinal products in one bid.

The procedure for determining a procurement subject was approved by order of the Ministry of Economic Development and Trade of Ukraine No. 454 as of March 17^th, 2016. The procedure contains some provisions on determining the procurement subject in case of medicinal product procurement.

In particular, the procedure provides that within medicinal product procurement the procurement subject is determined by third figure indicator of the Unified Procurement Dictionary specifying in brackets international non-proprietary name of the medicinal product. In case the procurement subject contains 2 or more medicinal products, the customer must specify in brackets international non-proprietary name of each medicinal product.

The customer may determine separate parts of the procurement subject (bid) by international non-proprietary names, by dosage form, dose, volume and/or the place of delivery of medicinal products.

Despite the abovementioned, neither this procedure, nor any letters from the Ministry of Economic Development and Trade of Ukraine as an authorized body provide exhaustive explanations on uniting medicinal products in one bid, which, as previously mentioned, often leads to creation of discriminatory terms in tender documents and appealing procurement, respectively.

Thus, we consider adoption by the Antimonopoly Committee of Ukraine on March 30^th, 2018 of recommendations mandatory for consideration by the Ministry of Health and Ministry of Economic Development and Trade of Ukraine to take measures to improve the procedure for determination of the medicinal product procurement subject, in particular, but not limited to by development of common methodological recommendations/methodological explanations and/or making amendments to the Procedure for Procurement Subject Determination, very good and important.

In our opinion, unambiguousness and clarity in this matter will lead not only to reduction in the number of complaints to the Antimonopoly Committee of Ukraine and creation of the competitive environment at medicinal product markets at public procurement, but also to timely provision of patients with necessary medicines.

Should you have any questions regarding this article, please do not hesitate to contact Alexander Bondar, Senior Associate of Legal Alliance Company, bondar@l-a.com.ua