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Oleksandr Fefelov Moderates the VIIІ Ukrainian Antitrust Forum

News date: 27 March 2023

Oleksandr Fefelov, the Partner and Head of Antitrust and Competition Practice, moderated the Public Procurement During the War Session at the VIIІ Ukrainian Antitrust Forum held on 22 March 2023 in Kyiv.

Representatives of the Antimonopoly Committee of Ukraine and well-known experts in the sphere of competition laws discussed the specifics of public procurement during wartime.

Oleksandr Fefelov emphasized that during difficult times the usual rules of the game are changing and procurement operations must be made promptly and efficiently. Therefore, the subject of procurement for the budget funds is becoming much more burning for customers, clients, suppliers, and lawyers. Moreover, the appeals in this field should also run fast and not delay the supply of the vital commodities and works. Besides that, the participants discussed the problematics of detecting and proving distortions of the auctions.

“In some cases the AMCU tries to prove the existence of circumstances that could theoretically result in distortion, but not the fact that it took place in reality. The Committees’ allegations are often based on abstract assumptions, rather than on duly established facts of collusions in public procurement,Oleksandr Fefelov noted. – At the same time, following the issuance of the decisions by the Committee, the accused economic undertakings receive not only fines, but they also are included into the so-called “black list”, that prohibits them to take part in public procurement for next 3 years. And if while the accused entities challenge the decision of the AMCU they do not pay fine, but they still remain included on that list and could not participate in public procurement. Many such accusations that I have encountered in practice are based on circumstantial evidence in the complete absence of any direct evidence, which casts doubt on such accusations, but had resulted in serious problems for business”.

The session participants also considered the practice of the AMCU as an appellate body, typical violations committed by the customers and suppliers, corruption risks in terms of the practice of the High Anti-Corruption Court of Ukraine, trends in litigation regarding appeals of the AMCU decisions on public procurement, and criminal law consequences of tender violations. They also reviewed the practical cases of abuse of monopoly position in the field of public procurement.

VIIІ Ukrainian Antitrust Forum is organized by Yurydychna Praktyka Publishing House. The Forum is attended by the representatives of the Antimonopoly Committee of Ukraine, the Ministry of Economy of Ukraine, the judges, members of Ukrainian and international business associations, lawyers of the leading law firms, top managers and legal advisers of numerous companies.