In the practice of public procurement, establishing compliance with the grounds for applying a non-competitive procedure requires proper documentary and legal justification, as such a procedure is exceptional in nature and may be used only in cases expressly defined by law. In particular, pursuant to the first paragraph of point 9 of the Specific Features approved by Resolution of the Cabinet of Ministers of Ukraine No. 1275, and the fifth 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 where works, goods, or services can be supplied exclusively by a specific business entity, including due to the need to protect intellectual property rights.
Within the procurement of services under DK 021:2015 – 72250000-2 (services for maintenance (technical support) of information and communication systems), with a value equal to or exceeding UAH 200,000, without conducting procurement through the electronic procurement system, the key issue is proving the exclusivity of the Participant’s rights to the relevant software and the impossibility of engaging alternative contractors.
Such substantiation is carried out through an independent professional examination in the form of a conformity assessment and consists in establishing that the software used in the Contracting Authority’s information and communication system belongs to the Participant on the basis of a copyright registration certificate and constitutes a unique intellectual property object that has no functional analogues capable of performing the defined tasks of automated accounting and control.
Additionally, it is established that the software includes a comprehensive information security system ensuring protection in accordance with the requirements of regulatory documents on technical information protection in Ukraine, which excludes the possibility of applying alternative solutions without loss of functionality and security.
It is also separately confirmed that the Participant holds exclusive proprietary intellectual property rights to the software, transferred from the authors under a relevant agreement duly registered in accordance with the established procedure.
Thus, in such cases, an expert conclusion of an independent professional examination in the form of a conformity assessment serves as a key instrument for objectively establishing the existence of exclusive intellectual property rights and the legality of applying a non-competitive procurement procedure.
