| Krylova O.I., Executive Director, Junior Research Fellow in Law at IPE LLC, https://orcid.org/0009-0009-3365-2404 Collection of scientific papers. 2024 Issue 24. Part 2 / Editors: Krupchan O. D. (editor-in-chief) and others. Kyiv: Academician F. G. Burchak Research Institute of Private Law and Entrepreneurship of the National Academy of Legal Sciences of Ukraine, 2024. 225 p. (P. 153-161). |
Annotation.
Negotiated procurement procedure is used as an exception and is a procedure that differs significantly from other competitive procurement procedures. Similarly, during the period of martial law in Ukraine, the use of grounds for the purchase of goods (works and services) without procurement in the electronic procurement system became widespread. The introduction of a transparent mechanism for conducting these procedures to ensure competitiveness and rational use of budget funds directly depends on the establishment of clear requirements for the application of these procedures. The analysis of the court practice has shown gaps and ambiguities in the interpretation of the legislation in the field of public procurement, in particular, regarding the obligation to document the grounds for the application of such procedures. At present, one of the main issues is to determine the requirements for expert and regulatory documents that are used as a basis for making a decision both for the application of the negotiation procurement procedure and for the purchase of goods (works and services) without procurement in the electronic procurement system during the period of martial law in Ukraine, as well as for the institutions authorized to issue such documents. As of today, the fourth paragraph of clause 2 of part two of Article 40 and clause 8 of part six of Article 40 of the Law of Ukraine “On Public Procurement” do not fully reflect the legal nature of the documents required to confirm the negotiation procurement procedure, which is an important legal instrument that ensures transparency, legality and efficiency of the procurement process. Instead, the Peculiarities of Défense Procurement for the Period of Martial Law, approved by the Resolution of the Cabinet of Ministers of Ukraine № 1275 dated 11.11.2022, stipulates that the justification shall be prepared in the form of an administrative decision of the customer or other document by an authorized person or other official (official) person of the customer and agreed (approved) by the head of the customer or another person designated by the head of the customer, and in the Peculiarities of Public Procurement of Goods, Works and Services for Customer approved by the Resolution of the Cabinet of Ministers of Ukraine of 12.10.2022 № 1178, the provisions defining the list of such documents are absent at all.
The purpose of this publication is to substantiate the legal basis for the requirements to document the grounds for applying the negotiation procurement procedure or the grounds for purchasing goods (works and services) without conducting procurement in the electronic procurement system during the period of martial law in Ukraine; to analyse practical situations to which attempts have been made to apply the conclusions of judicial authorities.
The object is the legal relations arising in the course of the negotiation procurement procedure or the purchase of goods (works and services) without procurement in the electronic procurement system during the period of martial law in Ukraine; the subject matter is the applicable positive law; the practice of judicial activity and the activity of expert institutions.
Based on court decisions and expert opinions of expert institutions, the author identifies cases of improper justification of the grounds for applying the negotiation procurement procedure, which is a risk of corruption schemes, excessive spending of budget funds and violation of procurement legislation. These risks also fully apply to the purchase of goods (works and services) without procurement in the electronic procurement system during the period of martial law in Ukraine.
It is outlined that the documents which substantiate the legal grounds for applying the negotiation procedure for procurement or procurement of goods (works and services) without procurement in the electronic procurement system during the period of martial law in Ukraine should be of an expert nature, be technically, directly and objectively substantiated, indicate the need to apply the negotiation procedure for procurement or procurement of goods (works and services) without procurement in the electronic procurement system during the period of martial law in Ukraine in specific in a particular procurement and issued by enterprises, institutions, organizations that have the statutory authority to conduct relevant research as part of experts whose qualifications are confirmed by a diploma, certificate, etc.
The article emphasizes that an appropriate and admissible document to be taken into account by an authorized person or body of the customer when making a decision on substantiation of the grounds for applying the negotiation procurement procedure (Article 40 of the Law of Ukraine “On Procurement”) or procurement of goods (works and services) without procurement in the electronic procurement system during the period of martial law in Ukraine (clause 9 of the Peculiarities of Défense Procurement for the Period of Martial Law, approved by the Resolution of the Cabinet of Ministers of Ukraine №1275 dated 11.11.2022; clause 13 of the Peculiarities of Public Procurement of Goods, Works and Services for Customers Provided for by the Law of Ukraine “On Public Procurement”, approved by the Resolution of the Cabinet of Ministers of Ukraine № 1178 dated 12.10.2022) is an expert opinion.
