PECULIARITIES OF CONCLUSION OF PUBLIC PROCUREMENT AGREEMENTS AND POSSIBLE NEGATIVE CONSEQUENCES IN CASE OF VIOLATION OF CERTAIN CONDITIONS AND LAW

Abstract

The study analyzed the essential conditions of contracts in the field of public procurement, which are somewhat specific and much larger in number compared to the essential conditions of ordinary business contracts. During the research, the authors established that the mandatory procurement conditions play a decisive role in the conclusion of public procurement contracts. The subsequent conclusion or non-conclusion of the relevant contract or its subsequent invali­dation by the court will depend on how accurately the customer sets out the procurement con­ditions in his procurement announcement and in his tender documentation. Typical mistakes of customers when setting out the essential terms of procurement contracts and procurement conditions were considered. The results of the research can be used to improve the procurement process and the appropriate conclusion of contracts by customers and participants in public pro­curement in order to avoid typical mistakes or violations that may cause negative consequences in the future: cancellation of procurements, non-conclusion of relevant contracts, recognition of their invalidity or nullity. Today, there is a huge public market in Ukraine, which functions thanks to the Prozorro electronic system. Legal relations on this market must comply with the Law of Ukraine “On Public Procurement” and other normative legal acts. Therefore, it is relevant to study the con­tractual process of public procurement with an emphasis on the essential conditions of the relevant contracts, which are derived from the mandatory procurement conditions. When con­sidering the essential terms of public procurement contracts, contracts that are publicly avail­able in the Prozorro electronic system were analyzed. Considering the practice of the Supreme Court, the typical errors of the customers in setting out the essential conditions and the cor­responding negative consequences of these errors were considered, in particular, in the case of incorrect definition of the subject of the contract by the customers and excessive detailing of the procurement conditions by the customers in the procurement announcement and in the tender documents. Analyzing scientific research and publications, it can be argued that the proposed topic is insufficiently researched and developed by other scholars in the field of civil and economic law. The subject of the contract, as a defining essential condition of the contract, was studied by scientists M. M. Aharkov, M. I. Brahinskyi, V. V. Vitrianskyi, E. O. Sukhanov, M. M. Hudyma and others. But none of these scientists paid attention to the fact that the subject of the purchase contract is a broader concept compared to the subject of the contract in other business contracts. Other essential conditions of the purchase contract were not investigated by the specified sci­entists. The purpose of this article is the analysis of scientific publications, regulatory legal acts, their enforcement, judicial practice and features of the process of concluding contracts with the aim of establishing the determining factors of the formation of essential terms of contracts in the field of public procurement. Based on the results of the analysis, it can be stated that there are no such concept as essential procurement conditions in the current legislation.