| Romanovska L.А., Candidate of Law, Director, Chief Research Fellow in the field of jurisprudence at IPE LLC, https://orcid.org/0009-0004-6306-6936 Security in the intellectual dimension: materials of the VI All-Ukrainian scientific and practical conference (October 11, 2024, Kyiv) / compiled by V.S. Kucherenko, editors R.B. Shyshka, N.P. Khrystynchenko. Kyiv: “Lyudmila Publishing House”, 2024. 288 p. (Р. 86-92). |
Generalised theses.
Each procurement carried out outside competitive procedures requires an individual professional justification, which can be provided by a professional expert who has proven professional qualifications and professional competence for this. It is a huge mistake to prepare such justification according to a sample or replace it with another non-expert document. The scientific literature emphasizes that it is “…such an expert assessment by an independent expert institution provides transparency in the implementation of procurement and is a kind of competitive mechanism in such procedures”. It is advisable to agree with such reasoning. If procurement is carried out by negotiated procedure or by purchasing goods, works and services, the value of which is or exceeds 100 (200) thousand hryvnias, without conducting procurement in the electronic procurement system during the period of martial law in Ukraine without conducting procurement in the electronic procurement system, that is, as an exception, then the appropriateness of the application of the grounds for such procurement must be established by an independent professional examination to provide an expert opinion on assessing the appropriateness of the grounds for such application.
Such an expert opinion, in accordance with Article 15 of the Law of Ukraine “On Copyright and Related Rights”, is an object of intellectual property rights, which is created at the request of the customer of the expertise, and is a document assessing the compliance of legal and technical grounds and their consequences in the emergence and development of legal relations, which are notified by the customer of the expertise, and investigated on his behalf by applying specialized legal and special knowledge.
The expert opinion on such an independent professional expertise must have a validity period, which must be defined by the period: from the date of its issuance and until the completion of the procurement on the basis of which the expert study was conducted. If the expert opinion is not implemented within the defined period and exclusively to the object and subject of the study according to the order of the customer of the expertise, then it loses its validity.
It is with regard to this principle of activity that the requirements of DSTU EN ISO/IEC 17020:2019 (EN ISO/IEC 17020:2012, IDT; ISO/IEC 17020:2012, IDT) oblige the inspection body to regularly identify risks to its impartiality that may arise as a result of its activities or as a result of its relationships or relations with personnel (clause 4.1.3). If a risk to impartiality is identified, the inspection body must be able to demonstrate how it eliminates or minimizes this risk (clause 4.1.4).
The results obtained from the relevant independent expert examination are confidential, relate exclusively to the object and subject of the study in accordance with the order of the customer of the examination, and cannot be reproduced otherwise than in the full scope of the expert opinion. The dissemination or use of the results of the conformity assessment (independent expert examination) specified in the expert opinion in relation to other subjects of the study is inadmissible.
Since the expert opinion on conformity assessment (independent professional expertise) is an object of intellectual property, the rights to the object of intellectual property must be clearly distributed between the customer of the expertise, the organizer of the expertise and the experts. In particular, personal non-property rights provided for in Articles 423 and 438 of the Civil Code of Ukraine, namely: the right to recognition as authors, the right to prevent any infringement of intellectual property rights that may cause harm to the author’s honour or reputation, and others, in accordance with Article 15 of the Law of Ukraine “On Copyright and Related Rights”, belong: to the results set out in the expert opinion – to the experts (in co-authorship), whose creative work they were created; some of them, for example, to the form of the expert opinion, which is developed to unify the registration of the results of conformity assessment (independent professional expertise), may belong to the organizer of the expertise (expert institution). Property rights to an intellectual property object created by order of the customer of the expertise, provided for by Article 440 of the Civil Code of Ukraine, namely: the right to use; the exclusive right to allow use; the right to prevent unlawful use, including prohibiting such use, and others, in accordance with Article 15 of the Law of Ukraine “On Copyright and Related Rights”, are transferred to the customer of the expertise in full from the moment of creating the expert opinion (from the date specified in the expert opinion as the date of registration of the original document).
At the same time, experts in conformity assessment (independent professional expertise) have the right to use the conclusions and justifications made during the study in further scientific works and other publications, both under personal authorship and in co-authorship, within the framework of professional contribution, with observance of confidential information and commercial secrets without reference to the name of the customer of the expertise and its legal documents that were studied, observing the obligations to guarantee the confidentiality of the result of the expertise and information received for this from the customer of the expertise.
Thus, in the context of the issues under study, it should be noted that the expert opinion is precisely the document that the legislator should emphasize and recognize as the only and proper document regarding procurements that are carried out, as an exception, through non-competitive procedures. The expert opinion on conformity assessment (independent professional expertise) is a guarantee of security in procurements in the intellectual dimension.
