The negotiated procurement procedure is exceptional in nature and in its legal essence differs substantially from competitive public procurement procedures. During the period of the legal regime of martial law in Ukraine, there has been an expansion of the practice of applying non-competitive procurement procedures, which is conditioned by the specifics of public needs and the necessity of ensuring the continuous functioning of state authorities under crisis circumstances.
A comprehensive analysis of the provisions of current legislation, judicial practice and practical cases indicates the existence of certain gaps and ambiguities in defining the requirements for documentary confirmation of the grounds for applying non-competitive procedures. Such legal uncertainty creates risks of inconsistent law enforcement, potential abuses, unjustified expenditure of budgetary funds, and also complicates proper control over the lawfulness and justification of procurement decisions.
In this context, taking into account the existing legal conflicts and practical problems, the formation of a unified approach to the documentary confirmation of the grounds for applying non-competitive procurement procedures becomes of key importance. Such an instrument should be an expert opinion of independent professional expertise in the form of a conformity assessment, prepared by an expert institution that has the relevant statutory authority, and whose specialists possess the appropriate professional qualification and competence.
The introduction of such an approach will contribute to increasing the transparency of procurement procedures, reducing the number of disputes and forming a more predictable legal environment for all participants in procurement processes. A unified mechanism for expert determination of legal grounds will allow the standardization of decision-making processes and strengthen the level of trust between contracting authorities and business entities.
Thus, the expert opinion of independent professional expertise in the form of a conformity assessment is one of the most effective instruments for the documentary establishment of the grounds for applying non-competitive procurement procedures under the current legal regulation.
