In public procurement practice, the application of a non-competitive procedure requires enhanced substantiation, as it constitutes an exception to the general rule of conducting procurement on a competitive basis. In particular, pursuant to 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, which must be duly documented by the contracting authority.
In the case of procurement of services under DK 021:2015 — 72720000-3 (services in the field of global networks), with a value equal to or exceeding UAH 100,000, without the use of open tenders or the electronic procurement catalogue (under martial law and for 90 days following its termination), the key issue is to prove that the relevant services can be provided exclusively by a single economic operator. The methods of such substantiation may vary depending on the specific circumstances.
An effective instrument for substantiating the grounds for such procurement is the conduct of an independent professional examination in the form of a conformity assessment, which makes it possible to establish and confirm the absence of competition for technical reasons while applying expert knowledge in both technical and legal domains. Such substantiation may be based on and обусловлено the uniqueness of the technological infrastructure of the procurement participant, access to which is objectively restricted for third parties and whose operation is ensured exclusively by its owner.
The results of one of the conducted studies confirmed that the participant’s cloud data center is a complex software and hardware system built on virtualization and automation technologies, the management of which is technically possible only by its owner. This objectively excludes the possibility of engaging alternative providers and forming a competitive environment.
Additionally, the absence of competition for technical reasons is confirmed by a combination of the participant’s technical and organizational advantages, in particular: possession of a status unique in Ukraine as a Kubernetes Certified Service Provider (KCSP), confirming a high level of competence in cloud technologies; compliance of the information security system with established regulatory requirements; as well as the implementation and certification of information security and data protection management systems in accordance with international standards ISO/IEC 27001, ISO/IEC 27017, and ISO/IEC 27018.
Thus, in such cases, only a properly and comprehensively prepared expert conclusion of an independent professional examination in the form of a conformity assessment, carried out by experts possessing knowledge in both technical and legal fields, serves as a key element of the evidentiary base confirming the legality of applying a non-competitive procurement procedure on the grounds of absence of competition for technical reasons.
