In the practice of public procurement, establishing compliance with the grounds for applying a non-competitive procedure requires proper and documentary substantiation, as such a procedure constitutes an exception to the general principle of conducting procurement on a competitive basis. In accordance with the fourth paragraph of subparagraph 5 of point 13 of the Specific Features approved by Resolution of the Cabinet of Ministers of Ukraine No. 1178, a non-competitive procedure may be applied in the case of the absence of competition for technical reasons, duly confirmed by the contracting authority.
Within the procurement of goods under DK 021:2015 – 42120000-6 (pumps and compressors), with a value equal to or exceeding UAH 100,000, without the application of open tenders or the electronic catalogue (under martial law conditions and for 90 days after its termination), the key issue is proving that the relevant goods can be supplied exclusively by a specific economic operator.
Such substantiation is carried out through an independent professional examination in the form of a conformity assessment and consists in establishing the absence of competition for technical reasons, which excludes the possibility of participation of other suppliers in the relevant procurement.
In particular, the absence of competition is justified by the fact that the procurement participant is the direct manufacturer of the relevant equipment and an exclusive supplier of the goods used by the contracting authority in its operations. This objectively excludes the presence of alternative suppliers and the formation of a competitive market environment.
At the same time, the conducted market analysis and monitoring of potential suppliers of similar goods within the territory of Ukraine confirmed the absence of alternative contractors capable of supplying the specified equipment under identical technical conditions, which makes the formation of a competitive environment impossible and confirms the existence of a technically determined supply monopoly, serving as additional evidence of the absence of competition for technical reasons.
Additionally, the procurement participant confirms compliance with the qualification criterion established by the contracting authority under part two of Article 16 of the Law of Ukraine “On Public Procurement,” in particular the availability of documented experience in performing similar contracts in the period 2017–2025 with legal entities that are residents of Ukraine.
Thus, in such cases, a properly prepared expert conclusion of an independent professional examination in the form of a conformity assessment serves as a key instrument for establishing the objective absence of competition for technical reasons and the legality of applying a non-competitive procurement procedure.
