| 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 Ricerche scientifiche e metodi della loro realizzazione: esperienza mondiale e realtà domestiche: Raccolta di articoli scientifici «ΛΌГOΣ» con gli atti della VI Conferenza scientifica e pratica internazionale, Bologna, 15 novembre, 2024. Bologna-Vinnytsia: Associazione Italiana di Storia Urbana & UKRLOGOS Group LLC, 2024 (P.72-78). |
Generalised theses.
The methodology for proving the absence of competition for technical reasons, if the procurement participant is a resident of Ukraine, is based on the following analysis processes:
First, the study should establish a correspondence between the data on the subject matter of the procurement planned by the procuring entity and the data on the probable supply of goods (performance of works and provision of services) that can be provided by the participant as an exclusively defined business entity. A document containing initial data on the subject matter of procurement may be an order for an expert opinion, if the procurement customer directly applies to an expert institution for an expert opinion, or a letter from the procurement customer sent to the procurement participant, if the probable procurement participant directly applies to the expert institution for an expert opinion, fulfilling a kind of order given to it by the procurement customer to obtain an expert opinion on the basis of the said letter. The data on the procurement planned by the procuring entity must contain a clear name of the procurement item with reference to a single procurement classifier, for example, procurement of goods under DK 21:2015 42120000-6 – Pumps and compressors; procurement of services under DK 021:2015 – 72310000-1 Data processing services; procurement of services under DK 021:2015: 85320000-8 Social services (under the Classifier of Social Services 015.3 «Day care» for persons with disabilities (except children) and the elderly), etc. In such documents, the procuring entity, announcing its intention to carry out the procurement and to study the issue of the probable participation of the tenderer, must also outline the technical requirements for the subject of procurement, as well as determine which qualification criteria provided for in part two of Article 16 of the Law of Ukraine «On Public Procurement» [1] must be met by the tenderer.
Secondly, the study must establish the compliance of the tenderer’s powers in the procurement. In support of this, the participant must provide an extract from the Unified State Register of Legal Entities, Individual Entrepreneurs and Public Organisations regarding its state registration in Ukraine, which is used to study the compliance of its economic activities with the subject of procurement. If the tenderer is not directly the manufacturer of the goods (contractor, service provider), the authorized company must have exclusive rights granted by the manufacturer of the goods (contractor, service provider), which are documented by.
Thirdly, given the conclusions of the courts that the documentary justification of the ‘lack of competition for technical reasons’ is considered more objective if it is based on external regulatory and/or technical documents adopted and/or approved by the competent authority in accordance with the law [9], the study should be based on the documents available to the procurement participant that confirm the uniqueness of its goods (works, services). Such documents may be, for example, (1) an expert opinion provided by a competent departmental institution that the equipment on which the service is provided meets the requirements of regulatory documents on technical information protection; (2) an expert opinion provided by a competent departmental institution on the organisational and technical solution for the deployment of a comprehensive information protection system (3) a certificate of compliance with the requirements of ISO/IEC 27701:2019 and/or ISO/IEC 27001:2013, etc.
A separate feature in establishing the uniqueness of the procurement subject, according to the documents provided by the customer of the conformity assessment (independent professional examination), is the expert composition of the expert group. The practical experience of such expert work [10] allows us to draw attention to the expediency of conducting a comprehensive scientific examination in such cases, which involves both scientists in the fields of legal sciences and technical sciences. It is the results of such a comprehensive scientific examination that do not raise doubts about the objectivity of establishing the uniqueness of goods (works and services), since they are studied from the standpoint of knowledge that is the field of legal and technical sciences.
Therefore, establishing the uniqueness of the procurement tenderer’s goods (works, services) allows to distinguish it in the statement that the tenderer is the only supplier of goods (contractor, service provider) in Ukraine that are the subject of the procurement planned by its customer, and can only be ensured by a comprehensive scientific examination with the participation of scientists in the fields of legal sciences and technical sciences.
Fourthly, the study must establish the tenderer’s compliance with the qualification criteria set by the procurement customer in accordance with part two of Article 16 of the Law of Ukraine «On Public Procurement» [1]. Compliance is established on the basis of documents provided by the tenderer. The scientific literature notes that a clear definition by the procurement customer of the qualification criteria and the list of documents confirming them avoids practical problems and ambiguous understanding of the legal provision, namely: «…a method of documentary confirmation of the tenderer’s compliance with the qualification criteria in accordance with the law…» [11, с.62]. In the absence of a method of documentary confirmation by the tenderer of the relevant qualification criterion established by the procurement customer, the study is based on the documents provided by the tenderer at its own discretion.
Conclusions. The developed methodology allows to ensure the proper assessment of compliance with the absence of competition for technical reasons, which must be confirmed by the procurement customer, in accordance with the fourth paragraph of subparagraph 5 of paragraph 13 of the Specifics No. 1178 or the first paragraph of paragraph 9 of the Specifics No. 1275, with the participation of a resident participant in the procurement, by an expert institution that meets the following requirements: (1) has the appropriate powers in accordance with the charter; (2) the qualifications, competence and authority of its experts are confirmed by documents; (3) is accredited and certified in accordance with the requirements of DSTU EN ISO/IEC 17020:2019 (EN ISO/IEC 17020:2012, IDT; ISO/IEC 17020:2012, IDT) – Management systems of the inspection body; ISO 9001:2015, IDT (DSTU ISO 9001:2015) – Quality management systems; ISO 37001:2016, IDT (DSTU ISO 37001:2018) – Management systems for combating corruption; DSTU ISO/IEC 27001:2023 (ISO/IEC 27001:2022, IDT) – Information security management systems; (4) the risks of its professional activity are secured by a voluntary professional liability insurance contract in case of damage to third parties, which is primarily the procurement entity as a consumer of the expert opinion.
