The issue of properly documenting the legal grounds for conducting procurement procedures that are permitted by law as exceptions to competitive procurement requirements has become particularly significant in light of the new legislative framework governing the negotiated procurement procedure.
Pursuant to Article 51(6)(7) of the Law of Ukraine “On Public Procurement” dated May 27, 2026, the notice of intention to conclude a public procurement contract must include a justification for applying the negotiated procedure without prior publication, together with an expert opinion and/or regulatory, technical, and/or other documents confirming the existence of one of the grounds for conducting such a procedure as specified in that Article.
This legislative provision makes it possible to distinguish two interrelated elements of the legal mechanism for applying the negotiated procedure without prior publication: (1) justification for applying the relevant procurement procedure; and (2) documentary confirmation of the existence of a legal ground for conducting that procedure.
In this context, the Expert Opinion becomes a key document for substantiating the legal grounds for applying the negotiated procurement procedure. Unlike the mere collection of regulatory, technical, or other supporting materials, an Expert Opinion involves their professional examination, an assessment of the established circumstances, and the formulation of a reasoned conclusion as to whether the characteristics of the relevant statutory ground are present.
Why should particular importance be attached to the Expert Opinion? Because the lawfulness of applying an exceptional procurement procedure depends not only on a formal reference to the relevant statutory provision or the availability of a particular set of documents, but also on how convincingly the contracting authority can substantiate the factual circumstances justifying the application of that exception.
Independent professional expert assessment makes it possible to examine these circumstances before the contracting authority decides to apply the negotiated procedure, identify potential gaps in the documentary justification, and establish an appropriate evidentiary basis for that decision. The absence of expert research does not automatically render a procurement procedure unlawful. However, it leaves the contracting authority without additional independent professional substantiation, which may make it more difficult to demonstrate the lawfulness of its actions during procurement monitoring, an audit, or judicial proceedings.
The practical significance of Independent Professional Expertise is demonstrated by the experience of IPE LLC, which has organized and conducted more than 50 instances of Independent Professional Expertise in the Form of Conformity Assessment during its operations. An analysis of the factual circumstances involved in conducting these expert assessments led to the conclusion that a specific research algorithm was needed to examine the legal grounds for conducting the negotiated procurement procedure. Its structure combines a General Research Algorithm with Special Research Algorithms, the application of which depends on the specific legal ground, the statutory requirements governing its application, the particular characteristics of the subject matter of procurement, and the relevant qualification criteria.
The Special Research Algorithms establish additional research questions, assessment criteria, and lists of documents to be examined within the scope of the relevant Independent Professional Expertise in the Form of Conformity Assessment. This approach makes it possible to take into account the specific characteristics of each statutory ground and the subject matter of a particular procurement, ensure a consistent research process, and provide a well-founded assessment of the established circumstances.
Thus, practical experience in conducting expertise and the research methodology developed by IPE LLC demonstrate that proper documentary substantiation of the legal grounds for applying the negotiated procurement procedure requires more than the formal collection of documents. It requires their systematic examination using appropriate specialized professional knowledge. Such expert research provides the foundation for preparing a reasoned expert document capable of serving as evidentiary support for the lawfulness of the contracting authority’s decision to apply the negotiated procurement procedure.
Accordingly, engaging an independent professional expert body to conduct expertise should be regarded not only as a means of ensuring proper documentary substantiation of the legal grounds for applying the negotiated procurement procedure, but, above all, as a preventive mechanism for minimizing the contracting authority’s legal risks. Conducting expert research before deciding to apply the negotiated procedure makes it possible to assess in advance the sufficiency and appropriateness of the documentary evidence supporting the relevant legal ground, identify potential deficiencies in the justification, and obtain an independent professional assessment of the circumstances under examination.
This strengthens the contracting authority’s evidentiary position and provides substantiated arguments supporting the lawfulness of its decision in the event of procurement monitoring, an audit, or a legal dispute. Responsibility for the lawful application of the negotiated procurement procedure remains with the contracting authority. Therefore, obtaining an Expert Opinion based on Independent Professional Expertise in the Form of Conformity Assessment before making the relevant procurement decision constitutes a well-founded means of reducing legal risks in public procurement.
