In the practice of public procurement, establishing compliance with the grounds for applying a non-competitive procedure requires proper and documented substantiation, as it 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, such a procedure may be applied in the absence of competition for technical reasons, duly confirmed by the contracting authority.
Within the procurement of services under DK 021:2015 – 50530000-9 (repair and maintenance services for machinery), with a value equal to or exceeding UAH 100,000, without the use of open tenders and/or the electronic procurement catalogue (during the period of martial law in Ukraine and for 90 days after its termination or cancellation), the key issue is proving that the relevant services can be provided exclusively by a specific economic operator.
Such substantiation may be carried out through an independent professional examination in the form of a conformity assessment, which establishes the absence of competition for technical reasons and the objective impossibility of engaging alternative contractors.
In particular, the absence of competition within a specific procurement is confirmed by the fact that the participant is an integrated and authorized manufacturer vested with exclusive powers to perform restorative repair of equipment of its own production. It has been established that the contracting authority uses equipment from this manufacturer in its operations. These powers exclude the possibility of engaging other business entities to perform the relevant works.
At the same time, the conducted market analysis and monitoring of potential providers of similar services within the territory of Ukraine confirmed the absence of alternative contractors capable of performing the specified works under identical technical conditions, which makes the formation of a competitive environment impossible and confirms the existence of a technically обусловлена 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 in accordance with part two of Article 16 of the Law of Ukraine “On Public Procurement,” in particular the availability of documented experience in performing similar contracts during 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 objectively establishing the absence of competition for technical reasons and the legality of applying a non-competitive procurement procedure.
