Complex Scientific Expertise

• Identification of the Content of the Provision: (1) what rule of conduct the provision establishes: an obligation, a right, a prohibition, or a permission.
• Determination of the Purpose and Function of the Provision: (1) what purpose the provision pursues;
  (2) what function it performs within the relevant legal framework;
  (3) what legal relations it is intended to regulate.
• Determination of the Meaning of Terms and Concepts: (1) which terms and concepts are used in the provision;
  (2) determining the meaning of the terms and concepts, taking into account their statutory definitions, the context in which they are used, and their established legal meaning.
• Identification of the Subjects of the Provision: (1) to whom the provision applies (the parties to the contract, third parties, public authorities, etc.)
• Conditions for the Application of the Provision: (1) the circumstances under which the provision becomes applicable;
  (2) whether any time limits, events, or additional requirements apply.
• Determination of the Scope of Application of the Provision: (1) which legal relations and circumstances it applies to;
  (2) which legal relations and circumstances fall outside its scope.
• Scope of Rights and Obligations: (1) what is permitted, required, or prohibited;
  (2) the limits on the exercise of rights or performance of obligations.
• Consequences of Breach or Performance: (1) liability, sanctions, compensation, termination of a right, etc.
• Relationship with Other Provisions: (1) whether the provision is inconsistent with other provisions of the law or the contract;
  (2) which provision takes precedence in the event of a conflict;
  (3) whether the provision is general or special in relation to other interconnected provisions and how this affects its application.
• Practical Application: (1) how the provision is applied in practice (judicial practice, business customs, market analysis, etc.);
  (2) whether different approaches to its application exist and what the differences between them are.
• Formulation of the Final Results: (1) whether there are grounds for establishing whether the application of the legal or contractual provision is consistent with its actual content.

• Identification of the initial circumstances: (1) the circumstances that existed at the time of concluding the contract;
  (2) which of those circumstances the parties considered material for achieving the purpose of the contract.
• Analysis of Contractual Response Mechanisms: (1) whether the contract provides for mechanisms for responding to a change in circumstances, including provisions concerning the review of the contractual terms, negotiations, the allocation of the relevant risks, or termination of the contract.
• Establishment of the Change in Circumstances: (1) what the change specifically consists of;
  (2) whether the change is objective rather than subjective in nature;
  (3) whether the change disrupts the balance of the parties’ proprietary interests;
  (4) whether the change deprives either party of what it expected when concluding the contract.
• Scientific Substantiation of the Characteristics of a Material Change in Circumstances: (1) the unpredictability of the occurrence of such circumstances at the time of concluding the contract;
  (2) the materiality of the change in circumstances for the balance of the parties’ proprietary interests;
  (3) the duration of the circumstances that caused the change;
  (4) the impossibility for the interested party to eliminate the circumstances or their consequences;
  (5) the absence of fault on the part of the parties in the occurrence of such circumstances.
• Verification of the Unforeseeability of the Change in Circumstances: (1) whether the parties could reasonably have foreseen such a change in circumstances at the time of concluding the contract;
  (2) whether such a change in circumstances falls within the scope of normal business risk.
• Assessment of the Causal Relationship: (1) whether there is a direct causal relationship between the change in circumstances and the impossibility of performing the contract or the excessive burden of its performance;
  (2) whether the interested party has the possibility of eliminating the circumstances or their consequences;
  (3) whether the impossibility of performing the contract or the excessive burden of its performance is not caused by other circumstances unrelated to the change in circumstances that is the subject of the research.
• Analysis of Risk Allocation: (1) whether the risk of such a change in circumstances is not allocated to the interested party under the contract or by law.
• Verification of Compliance with the Principle of Good Faith: (1) whether the party took measures to minimize the adverse consequences of the change in circumstances;
  (2) whether the interested party attempted to initiate an amendment to the contract through negotiations.
• Formulation of the Generalized Research Result: (1) whether the results of the research provide grounds for establishing whether the material change in circumstances corresponds to the scientifically substantiated characteristics;
  (2) whether the results of the research provide grounds for initiating an amendment to or termination of the contract.

The expert research algorithm consists of two complementary components: the General Algorithm and Special Algorithms, which serve as supplements to the General Algorithm.

The General Algorithm establishes the basic sequence of expert research for examining the grounds for applying the negotiated procurement procedure.

The Special Algorithms are applied depending on the specific legal grounds, the legislative requirements governing their application, the particular characteristics of the subject matter of procurement, and the qualification criteria. They establish additional issues to be examined, assessment criteria, and documents subject to examination within the scope of the relevant independent professional expertise in the form of conformity assessment.

The General Algorithm for Expert Research is presented below. The relevant Special Algorithms are applied as supplements to it, taking into account the object, subject matter, and purpose of the specific expertise.

General Algorithm for Expert Research:

• Determination of the Subject Matter and Procurement Need: (1) what exactly is being procured, in what quantity or scope, and for what purpose;
  (2) whether the need is real, urgent, and substantiated.
  A document containing the initial data concerning the subject matter of the procurement may be a request for an Expert Opinion where the contracting authority directly requests the Expert Opinion, or a letter from the contracting authority addressed to the procurement participant where the prospective procurement participant directly requests the Expert Opinion, acting pursuant to a specific instruction from the contracting authority to obtain an Expert Opinion for the purpose of establishing compliance with the grounds for applying the negotiated procurement procedure or for the contracting authority’s procurement of goods, works and services without applying the procedure for simplified procurement, open tender, and/or the electronic procurement catalogue with the participation of that prospective procurement participant.
  In the letter, the contracting authority shall:
  (1) refer to the procurement plan for the relevant year;
  (2) specify the subject matter of the procurement with a reference to the Unified Procurement Dictionary (CPV 021:2015), for example, CPV 021:2015 42120000-6 – Pumps and compressors;
  (3) specify the technical characteristics that the subject matter of the procurement must meet;
  (4) establish the qualification criteria applicable to the procurement participant;
  (5) refer to the legal provision under which it is considering the possibility of applying the negotiated procurement procedure or procuring goods, works and services without applying the procedure for simplified procurement, open tender, and/or the electronic procurement catalogue with the participation of that procurement participant
• Determination of the Scope of Application of Procurement Legislation: (1) whether public procurement legislation applies to the procurement concerned;
  (2) whether the subject matter of the procurement falls within the exceptions provided for by law.
• Identification of the Legal Grounds: (1) which specific ground is provided for by Part Two of Article 40 of the Law of Ukraine “On Public Procurement”, or paragraph 13 of the Special Provisions No.1178
  (2) whether the factual circumstances correspond to the substance of that ground.
• Verification of the Absence of Alternative Procedures: (1) whether the application of the negotiated procurement procedure constitutes an exception rather than a means of circumventing competition;
  (2) whether there is no possibility of applying an open tender or other alternative competitive procedures.
  The research shall establish whether there was another lawful competitive route available for the procurement
• Verification of the Conformity of the Subject Matter of the Procurement with the Documents: (1) whether the same goods, works, or services in respect of which the exceptional ground is invoked actually correspond to the subject matter of the planned procurement.
  The research shall take into account the specific features underlying the exceptional justification, including:
  (1) the uniqueness of the goods;
  (2) the manufacturer’s rights;
  (3) compatibility;
  (4) technological characteristics;
  (5) copyright;
  (6) technical necessity.
• Temporal Relevance of the Evidence Provided: (1) whether the documents and circumstances relied upon by the contracting authority were valid and up to date at the time the decision to apply the respective procurement method was made.
  The following documents shall be covered by the research:
  (1) letters from the manufacturer;
  (2) Expert Opinions;
  (3) market analysis;
  (4) certificates;
  (5) permits;
  (6) information concerning the status of the sole supplier.
• Verification of the Sufficiency of the Evidence: (1) relevance – the document concerns the specific circumstance;
  (2) admissibility – the document may be used to confirm the relevant circumstance;
  (3) sufficiency – the body of documents as a whole makes it possible to reach a substantiated conclusion.
  Within the scope of expert research, it is determined whether the documents provided by the Customer are relevant and sufficient for assessing the conformity of the circumstances under examination with the legal grounds established by legislation. The research also identifies which circumstances and documents substantiate the relevant legal grounds and which do not provide sufficient substantiation thereof.
  At this stage of the research, the expert establishes the conformity of the factual circumstances and documents with the applicable requirements, but does not make a decision on whether to conduct the procurement and does not determine the winner or supplier.
• Verification of the Financial and Quantitative Conditions of the Procurement: (1) what is the expected value of the procurement;
  (2) whether it falls within the value thresholds for applying the respective procurement method;
  (3) whether the quantity/volume of the subject matter of the procurement has been determined correctly;
  (4) whether the determination of the subject matter of the procurement results in an artificial splitting of the procurement for the purpose of applying an exceptional procurement method
• Verification of the Pricing Conditions of the Procurement: (1) whether the price corresponds to the subject matter of the procurement, its scope, and technical characteristics;
  (2) whether the price is supported by adequate documentary justification;
  (3) whether the price corresponds to available market and/or other objective indicators, where such indicators can be established;
  (4) whether the procurement contains any indications of an unjustified overstatement of the cost;
  (5) whether the determination of the price ensures the proper economic justification of the procurement in the absence of a competitive procedure.
• Verification of the Exceptional Nature of the Circumstances: (1) whether the circumstances invoked by the contracting authority are exceptional in nature;
  (2) whether the factual circumstances correspond to the characteristics expressly defined by law for the relevant exceptional ground;
  (3) whether such circumstances actually existed at the time the decision to apply the respective procurement method was made;
  (4) whether such circumstances were objective and independent of the will of the contracting authority;
  (5) whether such circumstances are supported by appropriate and sufficient documentation;
  A document confirming the participant’s authority to hold exclusive rights to supply the goods, perform the works, or provide the services may be a letter from the manufacturer authorising the participant to carry out the specified activities.
  (6) whether there were any organisational, technical, or other conditions deliberately created by the contracting authority to create an opportunity to apply an exceptional procurement method;
  (7) whether there is a direct link between the exceptional circumstances and the need to apply the relevant exceptional ground.
  The research shall establish the correspondence between the data concerning the subject matter of the planned procurement and the data concerning the prospective supply of the goods, performance of the works, or provision of the services that may be provided by the participant as the only specific business entity capable of providing them.
• Market and Alternatives Analysis: (1) whether there are other potential suppliers;
  (2) whether the absence of competition for technical, technological, and/or legal reasons has been substantiated.
  The market analysis of goods, works, or services shall be performed by an independent specialised organisation that carries out the relevant type of economic activity.
  In the absence of a specialised organisation, the market analysis of goods, works, or services may be performed by IPE LLC.
  Where a market analysis is conducted by IPE LLC, organisational separation shall be ensured between the conduct of such analysis and the assessment of its results within the expert examination, as well as compliance with the requirements of independence and impartiality.
  The report on the market analysis of goods, works, or services shall specify the sources examined, the results of their analysis, the relevant conclusions, as well as the methods and methodologies applied in the research.
  Where non-public sources are used in the research, the grounds for and lawfulness of their use shall be documented.
  The research period shall comprise the preceding calendar year and the elapsed portion of the current calendar year as of the date on which the relevant order is received.
  Within 12 (twelve) months from the date of the analysis, the analysis of goods, works or services may be applied to other orders, provided that the relevance of its results is confirmed, taking into account changes in market, technical, legal and other material conditions.
• Verification of the participant’s legal and factual capacity to perform the subject matter of the procurement: (1) whether the participant’s registered types of economic activity correspond to the subject matter of the procurement;
  (2) whether the participant holds the required licences, permits, certificates or other documents, where such documents are required for carrying out the relevant activity;
  (3) whether the participant has the necessary technical, technological and organisational capabilities to supply the goods, perform the works or provide the services;
  (4) whether the participant’s documents comply with the established qualification and other requirements
  The research shall establish that the participant is capable of participating in the procurement based on its registered types of economic activities.
  The document confirming the types of economic activities of the procurement participant is an Extract from the Unified State Register of Legal Entities, Individual Entrepreneurs and Public Associations concerning state registration in Ukraine, on the basis of which the participant’s registered types of economic activities are established.
  For non-residents, an equivalent document required under the registration requirements of the respective country shall be provided.
  The research shall also establish the legal capacity of the particular supplier to carry out the relevant activity, namely:
  (1) legal capacity and registration;
  (2) registered types of economic activity (KVED);
  (3) licences;
  (4) permits;
  (5) special statuses;
  (6) exclusive rights;
  (7) intellectual property rights;
  (8) technical capability;
  (9) actual ability to perform the supply, works or services.
• Formulation of the Final Conclusions: (1) whether compliance of the grounds for applying the negotiated procurement procedure or for the contracting authority’s procurement of goods, works and services without applying the procedure for simplified procurement, open tender, and/or the electronic procurement catalogue has been established;
  (2) on which research results the established compliance of the grounds for applying the negotiated procurement procedure or for the contracting authority’s procurement of goods, works and services without applying the procedure for simplified procurement, open tender, and/or the electronic procurement catalogue is based

The expert research algorithm consists of two complementary components: the General Algorithm and Special Algorithms, which serve as supplements to the General Algorithm.

The General Algorithm establishes the basic sequence of expert research for examining the grounds for purchasing goods (works, services) without applying the simplified procurement procedure, open tendering, and/or the electronic procurement catalogue.

The Special Algorithms are applied depending on the specific legal grounds, the legislative requirements governing their application, the particular characteristics of the subject matter of procurement, and the qualification criteria. They establish additional issues to be examined, assessment criteria, and documents subject to examination within the scope of the relevant independent professional expertise in the form of conformity assessment.

The General Algorithm for Expert Research is presented below. The relevant Special Algorithms are applied as supplements to it, taking into account the object, subject matter, and purpose of the specific expertise.

General Algorithm for Expert Research:

• Determination of the Subject Matter and Procurement Need: (1) what exactly is being procured, in what quantity or scope, and for what purpose;
  (2) whether the need is real, urgent, and substantiated.
  A document containing the initial data concerning the subject matter of the procurement may be a request for an Expert Opinion where the contracting authority directly requests the Expert Opinion, or a letter from the contracting authority addressed to the procurement participant where the prospective procurement participant directly requests the Expert Opinion, acting pursuant to a specific instruction from the contracting authority to obtain an Expert Opinion for the purpose of establishing compliance with the grounds for applying the negotiated procurement procedure or for the contracting authority’s procurement of goods, works and services without applying the procedure for simplified procurement, open tender, and/or the electronic procurement catalogue with the participation of that prospective procurement participant.
  In the letter, the contracting authority shall:
  (1) refer to the procurement plan for the relevant year;
  (2) specify the subject matter of the procurement with a reference to the Unified Procurement Dictionary (CPV 021:2015), for example, CPV 021:2015 42120000-6 – Pumps and compressors;
  (3) specify the technical characteristics that the subject matter of the procurement must meet;
  (4) establish the qualification criteria applicable to the procurement participant;
  (5) refer to the legal provision under which it is considering the possibility of applying the negotiated procurement procedure or procuring goods, works and services without applying the procedure for simplified procurement, open tender, and/or the electronic procurement catalogue with the participation of that procurement participant
• Determination of the Scope of Application of Procurement Legislation: (1) whether public procurement legislation applies to the procurement concerned;
  (2) whether the subject matter of the procurement falls within the exceptions provided for by law.
• Identification of the Legal Grounds: (1) which specific ground is provided for by Part Two of Article 3 of the Law of Ukraine “On Public Procurement”, or paragraph 9 of the Special Provisions No.1275
  (2) whether the factual circumstances correspond to the substance of that ground.
• Verification of the Absence of Alternative Procedures: (1) whether the application of the negotiated procurement procedure constitutes an exception rather than a means of circumventing competition;
  (2) whether there is no possibility of applying an open tender or other alternative competitive procedures.
  The research shall establish whether there was another lawful competitive route available for the procurement
• Verification of the Conformity of the Subject Matter of the Procurement with the Documents: (1) whether the same goods, works, or services in respect of which the exceptional ground is invoked actually correspond to the subject matter of the planned procurement.
  The research shall take into account the specific features underlying the exceptional justification, including:
  (1) the uniqueness of the goods;
  (2) the manufacturer’s rights;
  (3) compatibility;
  (4) technological characteristics;
  (5) copyright;
  (6) technical necessity.
• Temporal Relevance of the Evidence Provided: (1) whether the documents and circumstances relied upon by the contracting authority were valid and up to date at the time the decision to apply the respective procurement method was made.
  The following documents shall be covered by the research:
  (1) letters from the manufacturer;
  (2) Expert Opinions;
  (3) market analysis;
  (4) certificates;
  (5) permits;
  (6) information concerning the status of the sole supplier.
• Verification of the Sufficiency of the Evidence: (1) relevance – the document concerns the specific circumstance;
  (2) admissibility – the document may be used to confirm the relevant circumstance;
  (3) sufficiency – the body of documents as a whole makes it possible to reach a substantiated conclusion.
  Within the scope of expert research, it is determined whether the documents provided by the Customer are relevant and sufficient for assessing the conformity of the circumstances under examination with the legal grounds established by legislation. The research also identifies which circumstances and documents substantiate the relevant legal grounds and which do not provide sufficient substantiation thereof.
  At this stage of the research, the expert establishes the conformity of the factual circumstances and documents with the applicable requirements, but does not make a decision on whether to conduct the procurement and does not determine the winner or supplier.
• Verification of the Financial and Quantitative Conditions of the Procurement: (1) what is the expected value of the procurement;
  (2) whether it falls within the value thresholds for applying the respective procurement method;
  (3) whether the quantity/volume of the subject matter of the procurement has been determined correctly;
  (4) whether the determination of the subject matter of the procurement results in an artificial splitting of the procurement for the purpose of applying an exceptional procurement method
• Verification of the Pricing Conditions of the Procurement: (1) whether the price corresponds to the subject matter of the procurement, its scope, and technical characteristics;
  (2) whether the price is supported by adequate documentary justification;
  (3) whether the price corresponds to available market and/or other objective indicators, where such indicators can be established;
  (4) whether the procurement contains any indications of an unjustified overstatement of the cost;
  (5) whether the determination of the price ensures the proper economic justification of the procurement in the absence of a competitive procedure.
• Verification of the Exceptional Nature of the Circumstances: (1) whether the circumstances invoked by the contracting authority are exceptional in nature;
  (2) whether the factual circumstances correspond to the characteristics expressly defined by law for the relevant exceptional ground;
  (3) whether such circumstances actually existed at the time the decision to apply the respective procurement method was made;
  (4) whether such circumstances were objective and independent of the will of the contracting authority;
  (5) whether such circumstances are supported by appropriate and sufficient documentation;
  A document confirming the participant’s authority to hold exclusive rights to supply the goods, perform the works, or provide the services may be a letter from the manufacturer authorising the participant to carry out the specified activities.
  (6) whether there were any organisational, technical, or other conditions deliberately created by the contracting authority to create an opportunity to apply an exceptional procurement method;
  (7) whether there is a direct link between the exceptional circumstances and the need to apply the relevant exceptional ground.
  The research shall establish the correspondence between the data concerning the subject matter of the planned procurement and the data concerning the prospective supply of the goods, performance of the works, or provision of the services that may be provided by the participant as the only specific business entity capable of providing them.
• Market and Alternatives Analysis: (1) whether there are other potential suppliers;
  (2) whether the absence of competition for technical, technological, and/or legal reasons has been substantiated.
  The market analysis of goods, works, or services shall be performed by an independent specialised organisation that carries out the relevant type of economic activity.
  In the absence of a specialised organisation, the market analysis of goods, works, or services may be performed by IPE LLC.
  Where a market analysis is conducted by IPE LLC, organisational separation shall be ensured between the conduct of such analysis and the assessment of its results within the expert examination, as well as compliance with the requirements of independence and impartiality.
  The report on the market analysis of goods, works, or services shall specify the sources examined, the results of their analysis, the relevant conclusions, as well as the methods and methodologies applied in the research.
  Where non-public sources are used in the research, the grounds for and lawfulness of their use shall be documented.
  The research period shall comprise the preceding calendar year and the elapsed portion of the current calendar year as of the date on which the relevant order is received.
  Within 12 (twelve) months from the date of the analysis, the analysis of goods, works or services may be applied to other orders, provided that the relevance of its results is confirmed, taking into account changes in market, technical, legal and other material conditions.
• Verification of the participant’s legal and factual capacity to perform the subject matter of the procurement: (1) whether the participant’s registered types of economic activity correspond to the subject matter of the procurement;
  (2) whether the participant holds the required licences, permits, certificates or other documents, where such documents are required for carrying out the relevant activity;
  (3) whether the participant has the necessary technical, technological and organisational capabilities to supply the goods, perform the works or provide the services;
  (4) whether the participant’s documents comply with the established qualification and other requirements
  The research shall establish that the participant is capable of participating in the procurement based on its registered types of economic activities.
  The document confirming the types of economic activities of the procurement participant is an Extract from the Unified State Register of Legal Entities, Individual Entrepreneurs and Public Associations concerning state registration in Ukraine, on the basis of which the participant’s registered types of economic activities are established.
  For non-residents, an equivalent document required under the registration requirements of the respective country shall be provided.
  The research shall also establish the legal capacity of the particular supplier to carry out the relevant activity, namely:
  (1) legal capacity and registration;
  (2) registered types of economic activity (KVED);
  (3) licences;
  (4) permits;
  (5) special statuses;
  (6) exclusive rights;
  (7) intellectual property rights;
  (8) technical capability;
  (9) actual ability to perform the supply, works or services.
• Formulation of the Final Conclusions: (1) whether compliance of the grounds for applying the negotiated procurement procedure or for the contracting authority’s procurement of goods, works and services without applying the procedure for simplified procurement, open tender, and/or the electronic procurement catalogue has been established;
  (2) on which research results the established compliance of the grounds for applying the negotiated procurement procedure or for the contracting authority’s procurement of goods, works and services without applying the procedure for simplified procurement, open tender, and/or the electronic procurement catalogue is based.