Ovramets Y. Administrative and legal procedures of public procurement in Ukraine

Іt was found that given the fact that on 24 February 2022, the Russian Federation launched open military aggression against Ukraine, the public procurement system in Ukraine faced unprecedented challenges that had to be urgently addressed by the Verkhovna Rada of Ukraine and the Cabinet of Ministers of Ukraine in order not to paralyze the entire procurement system in Ukraine. The experience of the first phase of the war in February-April 2022 showed that virtually none of the procedures of the Law of Ukraine «On Public Procurement» provided for the simplification and acceleration of procurement under martial law and, in fact, far from ensuring the urgency of addressing public procurement issues for state needs. The author suggests that administrative and legal regulation of public procurement should be defined as a targeted impact of administrative law provisions on the process of public procurement with the aim of ensuring, through administrative and legal means, full performance by the State of the tasks and functions entrusted to it by society. The author proves that public procurement as an object of administrative and legal regulation in Ukraine has the following key features: 1) regulatory regulation; 2) targeted use of funds; 3) сompetitive nature; 4) еconomic feasibility; 5) іt is an instrument of economic policy. The author suggests that administrative procedures of public procurement should be considered as the procedure established by the Law of Ukraine «On Public Procurement» for carrying out sequential procedural actions by public procurement customers and making procedural decisions on procurement of goods, works and services within the framework of the statutory organization of public procurement aimed at realization of the State's competence to purchase goods, works and services with the greatest efficiency and lowest costs, which ends with customers making a decision on procurement of goods, works and services. The author establishes that the Law of Ukraine «On Administrative Procedure» does not apply to administrative procedures for public procurement. The correlation of the concepts is defined: «procurement procedure» («open bidding procedure», «restricted bidding procedure», «competitive dialogue procedure»), as well as «monitoring of the procurement procedure». It is proved that administrative procedures in the field of public procurement have all the same features inherent in administrative procedures. It has been scientifically substantiated and proven that public procurement procedures determine the recipients of funds from the state and local budgets. The article establishes that the administrative procedure for authorisation of electronic platforms is aimed at allowing private information and telecommunication systems to access the electronic procurement system and granting them the powers of an electronic platform - the powers to register users of the electronic procurement system, automatically post, receive and transmit information and documents during procurement, and use services with automatic information exchange. It is stated that the procedure for appealing against public procurement in the field of public procurement is an administrative procedure and has all their main features. The author proves that administrative procedures for control and supervision in the field of public procurement are interventionist procedures designed to protect the interests of the State in the efficient use of public funds. It has been established that Ukraine must complete the implementation of the requirements under Annexes XXI-D and XXI-E to Chapter 8 «Public Procurement» of Title IV «Trade and Trade-related Matters» of the Association Agreement with the EU. It is stated that a revolutionary change in the entire system of public procurement in Ukraine was the fact that the Draft Law No. 2526-IX of 16.08.2022 excluded the requirement of the Law of Ukraine «On Public Procurement» to establish the specifics of certain procurements to ensure the guaranteed provision of defence needs during the period of martial law by a separate law and introduced that for the period of martial law in Ukraine, the specifics of procurement of goods, works and services for customers provided for by this Law are determined by the Cabinet of Ministers. The author proves that complete withdrawal of public and defence procurement regulation from the scope of legislative regulation of the Law of Ukraine «On Public Procurement» and the Law of Ukraine «On Defence Procurement» may also pose internal risks to the State. The author proves that Resolution of the Cabinet of Ministers of Ukraine № 471 dated 12.05.2023, which amended Resolution of the Cabinet of Ministers of Ukraine № 1178 dated 12.10.2022.