In this article, we will review typical examples of discriminatory requirements in qualification criteria and offer advice on how to identify and challenge them.
 
Qualification Criteria: Purpose and Application Limits
 
The contracting authority has the right to establish qualification criteria under Article 16 of the Law of Ukraine “On Public Procurement.” Their main purpose is to ensure the participation of suppliers who are truly capable of fulfilling the contract effectively.
 
 

At the same time, qualification criteria must be:

 

  • Reasonable — aligned with the subject of procurement and the supplier’s capacity.
  • Proportionate — avoiding excessive barriers to participation.
  • Non-discriminatory — not favoring particular companies or unjustly restricting others.

 
 

Common Discriminatory Practices

 
1. Overly Demanding Experience Requirements
 
What happens in practice:
 
Contracting authorities require participants to prove execution of several identical contracts, matching the procurement’s subject, volume, and even value.
 
Why this is an issue:
 
Such requirements unjustifiably exclude new market participants or companies with relevant, but not identical, experience.
 
Legal stance:
 
The Antimonopoly Committee of Ukraine (AMCU) has repeatedly emphasized that requiring experience with a similarcontract is sufficient (for example, Decision No. 1197-r/pk-pz dated 22.12.2022).
 
 
2. Unjustified Requirements for Technical Resources
 
What happens in practice:
 
Tender documentation demands the possession of specific equipment that is not essential for fulfilling the contract.
 
Why this is an issue:
 
This limits participation to companies owning specific assets and excludes those capable of leasing or subcontracting.
 
Example:
 
Requiring ownership of trucks for providing consulting services.
 
Recommendation:
 
Technical requirements must relate directly to the contract’s needs and allow for alternatives such as rental agreements.
 
 
3. Disproportionate Financial Capability Requirements
 
What happens in practice:
 
A contracting authority demands that a participant’s annual revenue exceed the procurement’s value by 10–20 times.
 
Why this is an issue:
 
Such requirements effectively bar small and medium-sized enterprises from competing, even if they are technically capable.
 
Legal basis:
 
Financial criteria must be proportionate to the scope and nature of the procurement.
 
 
4. Excessive Staff Qualification Requirements
 
What happens in practice:
 
Requirements are set for staff to have degrees from specific universities or prior experience in particular companies.
 
Why this is an issue:
 
This unfairly disadvantages new companies or those with qualified employees who lack the narrowly tailored credentials.
 
Legal position:
 
Staff qualification requirements must directly relate to the procurement subject and should not impose irrelevant restrictions.
 
 
5. Geographical Restrictions
 
What happens in practice:
 
Contracting authorities require bidders to have offices or facilities in a particular region.
 
Why this is an issue:
 
Such requirements are prohibited unless justified by the specifics of the procurement (e.g., urgent delivery requirements).
 
AMCU’s stance:
 
If a participant’s location does not affect contract performance, setting geographical restrictions is considered discriminatory.
 
 

What to Do If You Find Discriminatory Conditions?

 
Participants have the right to request the contracting authority to amend the tender documentation (Article 24(2) of the Law).
 
If the request is ignored or rejected, a complaint may be filed with the Antimonopoly Committee of Ukraine (the standing administrative panel for procurement complaints).
 
 

Deadlines for filing a complaint:

 

  • For open tenders — no later than four days before the bid submission deadline;
  • For simplified procurement — during the clarification period.

 
 

Conclusion

 
When setting qualification criteria, contracting authorities must strictly follow the principles of fair competition, equality, and non-discrimination. Failure to do so risks not only legal challenges but also cancellation of the procurement process.
 
If you discover discriminatory conditions in tender documentation, it is essential to act promptly. The experts at ProPravo are ready to assist you with:

 

  • Risk assessment for participation in procurement;
  • Drafting requests and complaints;
  • Protecting your interests before the contracting authority and AMCU.

 
 
Contact us — defend your right to fair competition!