- Which legislation regulates: (i) the bidding process; and (ii) bid rigging in your country? Please provide brief details.
- What sanctions are envisaged for bid rigging and which authority can impose these? Can the awarded contract be considered null and void? Can bidders be excluded from the process and at which stage and under what circumstances?
- Can a decision by your national competition authority (NCA) finding an infringement (for bid rigging or any other cause) result in a tender ban (i.e. exclusion for future bidding processes)? If yes, what is the duration of the tender ban and when does it start (e.g. does it start even if the NCA decision is challenged before a court)? Is there a possibility to be exempted from the tender ban before the expiry of its full duration (e.g. self-cleaning) and under what circumstances?
- Are there any guidelines from your national competition authority (NCA) for combatting bid rigging? Are there any guidelines on lawful joint bidding/consortia in the tender process? Please provide brief details.
- How many bid rigging proceedings were opened from 2020 to 2022? How many bid rigging decisions were issued from 2020 to 2022?
- What is the percentage of bid rigging cases to the overall number of cartel cases in each year from 2020 to 2022?
- What is the total amount of fines imposed for bid rigging in each year from 2020 to 2022?
- Does leniency happen in bid rigging cases in your country?
- Is there criminal liability for bid rigging in your country?
- Is bid rigging an enforcement priority for the NCA in your country?
- Which sectors are mostly affected by bid-rigging investigations in your country in the last ten years?
- Any other interesting information/statistics/cases concerning bid rigging.
1.Which legislation regulates: (i) the bidding process; and (ii) bid rigging in your country? Please provide brief details.
The following pieces of legislation are the main ones for each instance:
- Law of Ukraine “On Public Procurement” sets out the public procurement rules in Ukraine, including the bidding process rules;
- Law of Ukraine “On the Protection of Economic Competition” regulates competition in Ukraine, including bid rigging matters.
2. What sanctions are envisaged for bid rigging and which authority can impose these? Can the awarded contract be considered null and void? Can bidders be excluded from the process and at which stage and under what circumstances?
The following sanctions are envisaged by Ukrainian laws and can be imposed by the Ukrainian national competition authority, the Antimonopoly Committee of Ukraine (the “AMC”):
- fine of up to 10% of income (revenue) of an undertaking from sales of products (goods and services) for the financial year preceding the year in which the fine is imposed;
- consequences: exclusion from public procurement procedures for three years.
The awarded contract cannot automatically be considered null and void; a respective court decision is needed to do so.
Yes, bidders can be excluded from the public procurement procedures based on a respective AMC’ resolution (provided the resolution is not ruled invalid by a court).
3. Can a decision by your national competition authority (NCA) finding an infringement (for bid rigging or any other cause) result in a tender ban (i.e. exclusion for future bidding processes)? If yes, what is the duration of the tender ban and when does it start (e.g. does it start even if the NCA decision is challenged before a court)? Is there a possibility to be exempted from the tender ban before the expiry of its full duration (e.g. self-cleaning) and under what circumstances?
Yes, a bidder is subject to three-year exclusion from public procurement procedures if found liable for bid rigging. The duration of a tender ban starts from the date of the AMC’s resolution and can be suspended if challenged before the court (provided the court does not rule otherwise). There is no possibility to be exempted from the tender ban before the expiry of its full duration.
4. Are there any guidelines from your national competition authority (NCA) for combatting bid rigging? Are there any guidelines on lawful joint bidding/consortia in the tender process? Please provide brief details.
We are not aware of any such guidelines in Ukraine.
5. How many bid rigging proceedings were opened from 2020 to 2022? How many bid rigging decisions were issued from 2020 to 2022?
In 2020, 848 bid rigging decisions were issued in Ukraine. In 2021, 917 were issued. There is no summarised information for 2022 yet. There is also no summarised information for 2020–2022 on the overall number of bid rigging proceedings.
6. What is the percentage of bid rigging cases to the overall number of cartel cases in each year from 2020 to 2022?
In 2020, this was 96.7%; in 2021, this was 99.7%. There is no summarised information for 2022 yet.
7. What is the total amount of fines imposed for bid rigging in each year from 2020 to 2022?
In 2020 the total fines imposed for bid rigging were UAH 489,426,000 (EUR 12,313,000), in 2021, the total was UAH 811,900,000 (EUR 20,425,000). There is no summarised information for 2022 yet.
8. Does leniency happen in bid rigging cases in your country?
No. Ukraine does not have a developed practice of leniency either in general or in bid rigging cases.
9. Is there criminal liability for bid rigging in your country?
Ukrainian law does not directly provide criminal liability of individuals regarding bid rigging.
10. Is bid rigging an enforcement priority for the NCA in your country?
Yes, in light of the prevailing percentage of bid rigging cases to the overall number of cartel cases (as described in answer 6 above).
11. Which sectors are mostly affected by bid-rigging investigations in your country in the last ten years?
In recent years, the most affected sectors have been energy, healthcare, construction and housing and communal services.
12. Any other interesting information/statistics/cases concerning bid rigging.
Recent years have seen a continuous trend of an increasing number of bid rigging decisions: there were 250 in 2018, 775 in 2019, 848 in 2020, and 917 in 2021, which illustrates the increasing level of the Ukrainian competition authority’s efficiency in response to bid rigging.
