The procedure for the conclusion of an agreement on the procurement resulting the bidding is regulated the Civil Code of Ukraine and the Commercial Code of Ukraine, taking into account the features envisaged by the Law of Ukraine "On Public Procurement".
The conclusion of an agreement on the procurement of the conducted bidding is the final stage of the whole process of conducting the procurement procedure. The procurer and the participant, the winner of the procurement procedures, should be attentive at this stage and pay maximum attention to the issue of the conclusion of the agreement, since it depends on how this agreement will be executed, whether it can subsequently be declared invalid, etc.
Also, the effectiveness of the agreement depends mostly on the terms of the agreement being signed at the time of its signing (including penal sanctions).
Deadlines for the procurement agreement.
The Law "On Public Procurement" provides the following deadlines for the conclusion of a procurement agreement:
Open bidding - the agreement under this procedure is concluded not earlier than 10 calendar days from the date of announcement on the web-portal of the Authorized Agency of the intention to conclude a procurement agreement and not later than 20 (twenty) calendar days from the date of the decision of the Procurer to conclude procurement agreement.
Negotiated procedure - The Procurer has the right to conclude an agreement on the procurement by the results of the negotiated procedure of the procurement in time:
- not earlier than in 10 calendar days (five calendar days - in case of application of the negotiated procurement procedure on the grounds specified in paragraph 3 of part two of Article 35, as well as in the case of purchasing oil, crude oil, electricity, services for its transfer and distribution, centralized supply of thermal energy, centralized supply of hot water, district heating services, postal services, postage stamps and marking envelopes, telecommunication services, including broadcasting radio and television signals, services of centralized water supply and / or water services for the transportation and rail public transport) from the date of publication on the website of the Authorized Agency a notice of intention to conclude the agreement;
- not later than 35 calendar days (20 calendar days - in case of application of the negotiated procurement procedure on the grounds specified in clause 3 of part two of Article 35, as well as in the case of purchasing oil, crude oil products, electric energy, services for its transmission and distribution, centralized supply of heat centralized supply of hot water, district heating services, postal services, stamps and marking envelopes, telecommunication services, including broadcasting of radio and television signals, services of centralized water supply and / or water services for the transportation and rail public transport) from the date of publication on the website of the Authorized Agency a notice of intention to conclude an agreement on the results of the negotiation procurement procedure.
"The procedure for the implementation of pre-threshold procurements" provides the following deadlines for the conclusion of the agreement:
the agreement on the results of this procurement must be signed between the Procurer and the Winner not earlier than 2 business days after the decision on the winner has been made public, but not later than 30 calendar days after the deadline for the submission of proposals.
Procurement for defense needs
the Law "On the peculiarities of the procurement of goods, works and services for the guaranteed defense needs" provides a deadline for the conclusion of the procurement agreement.
The agreement shall be concluded not earlier than four working days and not later than 10 working days after the announcement on the web portal of the Authorized Agency of the intention to conclude a procurement agreement.
Important: Bidding that are regulated by the Law "On Public Procurement" in case of a complaint under the procurement procedure to the appeal body (AMCU), the time period for the conclusion of the agreement is stopped until the appeal body has made the decision on the complaint.
Making changes to the terms of the agreement.
The law contains the general rule that the essential terms of the agreement should not be changed after its signing to fulfill the obligations of the parties to its terms, and contains an exhaustive list of 8 grounds for amending the procurement agreement, which are specified in Part 4 of Art. 36 of the law.
It is also worth noting that at the same time, the law does not contain any restrictions on amendments to the non-essential terms of the procurement agreement.
To make changes to the procurement agreement you must:
have documents confirming such changes;
Make appropriate changes to the agreement;
choose the correct grounds for making changes.
Changing prices - one of the most common reasons for changing the terms of the agreement. In this case, it is important for the procurer and the participant at the stage of signing the agreement to correctly register the order (mechanism) of changing the price of the subject of the procurement, as well as having the confirmation of the data changes (for example, that the price of the subject of the procurement has a currency component).
Also, the law provides that the agreement can be prolonged for the next
calendar year for a period sufficient for the procurement procedure in the new year, and in the amount not exceeding 20% of the total amount of the agreement, if the expenditures for this purpose are approved in accordance with the procedure established by law.
Refusal to sign the agreement.
If the winner of the bidding refuses to sign the procurement agreement, the procurer rejects the tender proposal of this participant and determines the winner among those participants, the term of validity of which the tender offer has not expired. In this case, if the terms of the documentation were to provide tender security of the offer, then such security is not returned.