Competitive Procedure Research Articles

THE LEGAL NATURE OF PUBLIC PROCUREMENT AGREEMENTS AND THE FEATURES OF CONTRACTING IN ELECTRONIC FORM

In the article, based on the analysis of the contractual process, with the help of analytical, formal-logical and comparative legal methods, the legal nature of the peculiarities of public procurement contracts and their difference from other civil-law and economic contracts is clarified, as well as the peculiarities of concluding contracts in electronic form. The relevance of the article is due to the significant importance of contracts on public procurement and the study of the features of concluding contracts in electronic form for the interests of state customers and the state as a whole. In the course of the study, the properties and nature of public procurement contracts and the peculiarities of concluding contracts in electronic form were clarified in the analysis of compliance with the principle of freedom of contract from the beginning of the pre-contractual process stage to the moment of concluding the procurement contract. When clarifying the legal nature of contracts on public procurement and the features of concluding contracts in electronic form, an analysis of the possibility of applying the concept of “a contract as a source of law” to these contracts is carried out. According to the results of the study, the transparency and openness of the entire contractual process, which is controlled by the public and state bodies in order to meet the needs of customers acting in the interests of the state, has been established. Important features of the legal nature of procurement contracts are their mandatory planning, consensuality and payment. The subject structure of these contracts is special, given the competitive nature of these contracts, which are mostly concluded as a result of competitive procedures or simplified procurement. The state takes a special role in these treaties as “a kind of treaty agent.” When concluding contracts on public procurement, the principle of economic profitability and compliance with the requirements of the customer in accordance with current legislation applies. According to the results and conclusions of the study, participants of the contractual process - customers and participants (service providers, contractors, sellers of goods) and specialists in the field of law are suggested to use in their work. Based on the results of the research, it is proposed to supplement Article 640 of the Civil Code of Ukraine with the fifth paragraph, in which to define the registration of procurement contracts in the state treasury bodies, which is mandatory, but is not specified in any legislative act. Also, in paragraph five of the specified article, it is proposed to determine the moment of conclusion of the purchase contract, which is different from the moment of conclusion of other contracts.

Brexit 이후의 영국 공공조달법제 연구

Korea's public procurement legal system is composed of various laws, including 「Act on Contracts in which the State is a Party」, 「Act on Contracts in which the Local Government is a Party」, 「Act on the Government Procurement Program」, 「Act on the Management of Public Institutions」, 「Act on Facilitation of Purchase of Small and Medium Enterprise-manufactured Products and Support for Development of Their Markets」, 「Defense Acquisition Program Act」, and the relationship among them is not systematically established. In order to address this issue, the enactment of the 「Act on Public Procurement (Draft)」 is being discussed. This article examines the 「Procurement Act of 2023」 in the United Kingdom, which enacted a single statute by integrating various regulations related to public procurement in each field after Brexit, in order to find implications for reforming Korea's public procurement law system. The 「Procurement Act of 2023」 in the UK presents Value For Money as the most important principle of public procurement, and to materialize it, it introduces ‘flexible competitive procedure’ as a new contracting method and ‘most advantageous tender (MAT)’ as a new award criteria. In addition, in order to ensure the effective operation of this flexible contracting system, there are regulations on securing transparency throughout the entire life cycle of the procurement, including the sharing of contract information. The 「Procurement Act of 2023」 in the UK provides the following implications for the reform of Korea's public procurement legal system. First, it is necessary to find the common principles in each sector procurement, and to legislate it into an Act. Second, it is necessary to establish the principles of public procurement, including value for money and the principle of proportionality. Third, it is necessary to prioritize and implement public procurement across government through a comprehensive public procurement plan, and in particular, to systematize the existing preferential procurement system. Fourth, it is necessary to improve contracting methods and award criteria that can realize value for money, and the collection and utilization of contract-related information is important for the proper operation of these new system.

Конкуренция требований налогового органа и конкурсных кредиторов к взаимозависимому с несостоятельным налогоплательщиком лицу

The article deals with the situation of competition in the practice of arbitration courts of the tax authority's claim for the recovery of arrears, presented simultaneously to the person controlling the debtor in a separate dispute on bringing to subsidiary liability in a bankruptcy case of a taxpayer in the manner of Chapter 3.2. of the Bankruptcy Law, and claims against the same person as an interdependent with an insolvent taxpayer in a separate claim proceeding, on the basis of paragraph 1, paragraph 3, Article 45 of the Tax Code of the Russian Federation. The author believes that in the situation under consideration there is an identity of claims, as a result of which the rights of other creditors of the debtor who are not involved in the distribution of funds received by the tax authority from the controlling debtor bypassing the competitive procedure are violated.

Indonesian Business Competition Law post the enactment Government Regulation in Lieu of Law on Job Creation Regulation into Law

This study aims to find out the development of business competition law in Indonesia as stipulated in Law Number 5 of 1999 on the Prohibition of Monopolistic Practices and Unfair Business Competition and its impact on the dynamics of business competition in Indonesia after the enactment of Law Number 6 of 2023 on Stipulation of Government Regulation in Lieu of Law (Government Regulation in Lieu of Law) Number 2 of 2022 concerning Job Creation into Law. This study uses a normative method with a statute approach and a library research approach. The formulation of the problem in this study is the development of business competition law in Indonesia after the enactment of the Government Regulation in Lieu of Law on Job Creation into Law and the impact of the enactment of Law Number 6 of 2023 on the dynamics of business competition in Indonesia. The results showed that the Business Competition Law in Indonesia experienced the first change in terms of substance after the enactment of Law Number 6 of 2023 on the Stipulation of Government Regulation in Lieu of Law Number 2 of 2022 concerning Job Creation into Law. These changes then led to a shift in the dynamics of the Competition Procedure Law, which was considered regressed. Keywords : Business Competition Law, Business Actors, and Unfair Competition

Features of state regulation of defense procurements

The article is devoted to the consideration of state regulation in the field of public procurement, in particular in the defense-industrial complex. The main law defining the basic principles and mechanisms of procurement is the Law of Ukraine «On Public Procurement». However, during the period of martial law, many changes were made in the procedures and mechanisms of public procurement, changes were already made more than once, through the adoption of separate laws and by-laws. The article analyzes the peculiarities of the application of public procurement mechanisms in certain sectors of the economy, in particular the defense-industrial complex. The necessity of modernization and improvement the procurement procedures for successful and effective compliance with the principles of competition and overcoming corruption, and other principles stipulated by legislation, is argued. Mechanisms for conducting procurement procedures are analyzed as one of the key elements of increasing the effectiveness of state economic policy, which is based, in particular, on the principles of fair competition, openness and transparency, non-discrimination of participants, objectivity and impartiality of evaluation of tender offers.
 It is substantiated that it is important to borrow international procurement experience to ensure compliance of national legislation with EU legislation. The issue of ensuring the appropriate level of defense capability of Ukraine in the conditions of countering full-scale military aggression on the territory of Ukraine by the Russian Federation is quite acute. A pressing challenge now is to ensure the rational spending of budget funds and the effective functioning and development of the state defense procurement system. It has been proven that the mechanism for the redistribution of budget funds should have the most transparent order of organization and the order of execution of the concluded procurement contract, which in the case of defense procurement involves reducing the number of closed procurements, excessive secrecy, increasing competitive procedures in the procurement of imported products and services, further improving pricing, canceling profit limits, accounting for inflation and life cycle cost.
 It is argued that consideration of physical, economic and informational security requirements is extremely important. It is about compliance with the principles of protecting customers from military threats, ensuring the simplification of public procurement by reducing the terms of the procurement procedure and simplifying the requirements for procedure participants, the effectiveness of the procurement process and the efficiency of the use of funds, primarily through the involvement of domestic entrepreneurs in tenders and ensuring the development of the domestic market, stability and defense capability.

РАЗВИТИЕ ТЕХНОЛОГИЙ ЦИФРОВОЙ ЭКОНОМИКИ КАК НАПРАВЛЕНИЕ ПОВЫШЕНИЯ УРОВНЯ ЭКОНОМИЧЕСКОЙ БЕЗОПАСНОСТИ РОССИИ В СФЕРЕ ГОСЗАКУПОК

. In the context of a sharp decline in the country’s budget revenues and an increase in its expenses, it is very important to organize the effective use of available resources, including financial ones. Therefore, it is very important to organize a system for regulating the use of budget funds through the system of organizing public procurement. Many enterprises consider this sector of activity economically profitable for themselves, since public procurement is associated with the provision of quality services in the healthcare sector, the agricultural sector and the social sphere, is a motivator of innovative development, a lever to combat environmental pollution, and also provides a factor in sustainable development. Starting in 2020, government procurement was transferred to electronic format. In a study conducted by the Institute of State and Municipal Management of the National Research University Higher School of Economics, which was published on December 20, 2021, an anonymous survey revealed that most representatives of business structures participating in public procurement encounter corruption during the competitive procedures. Based on the results of the analysis, it was revealed that open competition in electronic form and procurement from a single supplier (performer, contractor) are the most susceptible to corruption. And the best from the point of view of anti-corruption is an electronic auction, since it takes place in real time, which creates public control over the auction. As a result of the research, directions for openness and accessibility of information on public procurement for all interested parties, automation of the process of selecting a winner in a limited time without the influence of the customer with the participation of artificial intelligence were proposed. This will help increase the level of economic security of Russia in the field of public procurement.

До питання передумов корупції під час повномасштабної війни в Україні

Preventing and combating corruption is one of the main tasks of the state. It should be noted that the war is another reason to fight this negative phenomenon. Unfortunately, Ukraine has an insufficient level of countering and preventing corruption, as statistical studies show that its scale is not decreasing. Therefore, public authorities need to pay special attention to improving anti-corruption mechanisms and measures to ensure the quality and safe functioning of public policy for the benefit of Ukrainian society. The full-scale war on the territory of Ukraine has shifted the focus of the authorities’ efforts towards protecting the state from the enemy, and has also affected the determinants of corruption. The article analyses the main prerequisites for corruption in wartime, in particular, the temporary suspension of the Register of Electronic Declarations, the closure of access to most public data, the weakening of public control over the activities of public authorities, and public procurement without competitive procedures. Socio-economic reasons remain relevant, such as low wages; depreciation of moral norms in state and public life; low level of legal culture, etc. It is emphasised that the effective fight against corruption crime in Ukraine during the war continues and requires the creation of a more effective state system of coordination of anti-corruption policy with proper legislative consolidation and implementation of preventive measures to prevent corruption, especially in wartime. Ukraine’s current anti-corruption legislation needs to be improved and detailed. The activities of law enforcement agencies should not be influenced by corruption-related factors. A combination of law and order in the government and law-abidingness in society will help the Ukrainian state reach a new level of development.

Procedura finansowania zadań publicznych realizowanych przez organizacje pozarządowe w trybie art. 19a ustawy o działalności pożytku publicznego i o wolontariacie

The article discusses the procedure for financing public tasks commissioned by the executive bodies of local government in a non-open competition mode, regulated in Art. 19a of the Act on Public Benefit and Volunteering, which is the basic legal act regulating the functioning of non-governmental organizations in Poland. Commissioning the implementation of public tasks may take the form of entrusting the implementation of a public task or supporting the implementation of a public task. The basic form of commissioning public tasks by local government administration bodies is the competition procedure. It allows the principle of competitiveness and transparency of this process to be maintained. However, the legislator provided for the possibility of commissioning the implementation of public tasks also in a non-competition mode. By creating this possibility of commissioning public tasks, it introduced numerous restrictions for this mode, thanks to which this procedure is secondary to the basic form of commissioning public tasks by way of an open competition. The purpose of the discussion here is to analyze the procedure in matters relating to outsourcing the implementation of public tasks to non-governmental organizations by local government administration bodies within the meaning of the above-mentioned Act in a non-competition manner. The article also contains proposals for amending the regulation in question to adapt it to the currently existing socio-economic relations, because this regulation has been in force for over twenty years and requires changes, which results from the previous experience in its application.

Обмен земельными участками, находящимися в различных формах собственности (глава V.2 ЗК РФ), — существующие вызовы и перспективы применения

The article analyses the institute of exchange of land plots of different ownership forms that appeared in the Russian land legislation as a result of the 2015 reform. The author concludes that each of the cases of application of this institution will delay the realisation of certain public interests, representing a derogation from the general procedure for the sale of public property existing in the legislation through competitive procedures. The article demonstrates how the institute of land plot exchange is related to the eminent domain. It also suggests expanding the list of cases allowing the use of the land plot exchange institute in order to protect rights holders of land plots affected by the establishment of public legal restrictions on rights. In conclusion, a number of proposals for possible improvement of the current legislation are made, aimed at optimising the application of the institute of land exchange.

КОНКУРСНА ПРОЦЕДУРА НА ЗАЙНЯТТЯ ВАКАНТНОЇ ПОСАДИ СЛУЖБОВЦЯ МІСЦЕВОГО САМОВРЯДУВАННЯ: ТЕОРЕТИЧНИЙ АНАЛІЗ ТА ОНОВЛЕННЯ ПРАВОВОГО РЕГУЛЮВАННЯ

The article examines the competitive procedure in local self-government bodies as the main way of filling vacant positions of local self-government employees, defines its concept, content and legal principles. The normative acts establishing the basis of the competition for filling the vacant position of a local self-government employee were analyzed, in particular, the provisions of the Law of Ukraine «On Service in Local Self-Government Bodies» dated 05.02.2023. However, the provisions of this Law in this part need to be specified at the sub-legislative level. therefore, the procedural aspects of the organization of the competition should be specified in the Standard procedure for conducting a competition for local self-government employees, which must be approved by the central executive body, which ensures the formation of state policy in the field of service in local self-government bodies (National Agency of Ukraine on Civil Service Issues). It was concluded that the competitive procedure for filling a vacant position of a local self-government employee is a type of intra-organizational administrative procedures due to the fact that they are carried out within the bodies themselves or their system and are aimed at ensuring the functioning of the body or system of public administration bodies. The main tasks of this competitive procedure are highlighted, in particular, ensuring the practical implementation of the right to equal access to service in local self-government bodies and identifying persons who are able to professionally perform the duties of a local self-government employee. It was determined that the competitive procedure, like any administrative procedure, includes a clearly defined sequence of procedural actions that ensure a logical order of selection for the position of a local self-government employee. The structure of the tender procedure has been analyzed, which gives grounds for distinguishing the following stages: 1) preparation of the tender, 2) selection of a candidate for the vacant position of a local self-government employee, 3) decision-making based on the results of the competitive. Key words: public service, service in local self-government bodies, administrative procedures, competitive procedure, competitive procedure stages, competition, competitive commission, vacant position.

Prominent Scientists in the Monumental Sculpture of Leningrad — Saint Petersburg

The article examines the monuments to scientists and inventors installed in Leningrad and modern St. Petersburg and their influence on shaping collective historical representations of the past. On the basis of the analysis of reference literature and scholarship, a range of monuments for the study was determined, which led to the conclusions about which new monuments to scientists emerged in Soviet Leningrad and modern St. Petersburg more often and in which periods in the history of the city. The article explores the history of installation of some monuments with regard to both the mechanisms for developing the projects and the implementation of competitive procedures. The paper also addresses the initiators and reasons for the installation of a particular monument. The author comes to the conclusion that the projects for the monuments are most often initiated by the state, and less often — by the scientific community or some influential scientist. Business community rarely proposes to erect a monument to a famous scientist. The article reveals that monuments to representatives of the exact and natural sciences prevail over those to humanitarians, which can be attributed to both the applied nature of the work of the former and to the perception of the latter as part of the general pantheon of heroes of the national culture. A possible explanation for almost complete absence of monuments to historians, philologists, and philosophers in monumental sculpture may be due to the substitution of their role by monuments to writers and poets erected in large numbers both in Soviet Leningrad and in modern St. Petersburg.

ОЦІНКА ЕКОНОМІЇ СИСТЕМИ ЕЛЕКТРОННИХ ПУБЛІЧНИХ ЗАКУПІВЕЛЬ: КЕЙС PROZORRO 2018-2022 РР.

The paper examines savings in the system of public cigarette lighters in 2018-2022 in terms of key product groups: gasoline, flour, eggs, potatoes, milk, sugar. It is substantiated that the introduction of ProZorro electronic competitive procedures has a positive effect of savings on the analyzed types of products in almost all the studied years due to the fact that the purchase price was ultimately lower than the average market prices. The median margin has shown unstable values throughout all years, this situation is explained by the dispersion of prices and the variety of purchases. In general, according to the results of the study of selected homogeneous goods, which collectively constitute 0.007% of all purchases by the amount of concluded contracts for 2018-2022, it turned out that the electronic procurement system of ProZorro gives a significant effect of savings, and the cumulative difference between the actual cost of the purchase and the market value - increases starting from 2021. In the conditions of monopolization of prices, the economic effect of using ProZorro is much weaker or absent, and the reduction of corruption rent cannot always be achieved exclusively at the expense of procurement transparency, because in some cases there is a threat of non-competitive bidding. That is why competitiveness through the ProZorro system is the best way to save money in the budget sphere.

Governmental Local Investment Fund as a Financial Instrument to Support Urban Investment by the Example of Cities with District Status in the Lodz Voivodeship

The purpose of the article/hypothesis is to present the Government's Local Investment Fund as a financial tool to support municipalities and districts during the COVID-19 pandemic crisis and to provide an assessment of the support received in the context of investment expenditure incurred by cities with district rights in the Lodz Voivodeship.
 Methodology: On the basis of data from the Chancellery of the Prime Minister and the financial reports of the Cities with a District Status, the amount of funding granted from the Government Local Investment Fund was reviewed. Based on data from the Local Data Bank, the basic financial data for three Cities with a District Status from the Lodz Voivodeship in the years 2019–2021 was analysed, i.e. in the context of the use of funds from the Government Local Investment Fund.
 Results of the research: Local government units during the COVID-19 pandemic had an opportunity to obtain financial support from the state budget for the implementation of investment tasks from the Government Local Investment Fund. A total amount of PLN 13 billion was allocated to local governments. The funds were distributed in three rounds using two different qualification methods: algorithm and competition mode. Cities with a District Status under the competition procedure received less support than other local governments, and there were even situations in which they were deprived of this support. The distribution and the amount of support awarded caused a lot of controversy at the same time highlighting a need for changes in the system of local finances.

Environmental Assessments in Architectural Competitions in Poland in the Years 2018–2022

This paper discusses environmental and energy-saving factors in architectural competition procedures. The final assessment of sustainability and environmental aspects of a building is a derivative of the decisions taken during the entire project execution process, especially those taken at the initial stage. Notifications concerning architectural competitions, both in Poland and other European countries, as well as in the United States and Canada, increasingly often list sustainability as a necessary criterion. Aspects such as the use of renewable energy sources, energy efficiency solutions or reducing a building’s occupancy costs most often appear as guidelines. In this paper, the authors discuss the essence of solutions in architectural competition procedures announced in Poland in the years 2018–2022, using 154 cases as an example and setting them against the background of Europe. The types and level of detail of the selected criteria and their frequency of occurrence were examined. The study unveiled the absence of comprehensive guidelines in the processes of nationwide architectural competitions that take sustainability into account. The lack of definitions for environmental and energy objectives has a significant impact on their integration into competition designs, and reduces the chances of adapting and adopting these aspects at a further stage. Based on the analysis, a range of recommendations were formulated for implementation in competition procedures.

Независимая экспертная оценка компетенций государственных служащих

The article deals with the problems of assessing the competencies of civil servants in the process of conducting competitive procedures by independent experts. This study is necessary to determine the suitability of civil servants, attract qualified specialists to work from among applicants and graduates of universities, staff rotation, etc. The solution of these problems determines the search for evaluation tools and methods for assessing the competencies of employees. Therefore, the purpose of this article is to substantiate the methods of assessing the competencies of civil servants and to improve the work of independent experts in this field.

On suspicious tracks: Machine-learning based approaches to detect cartels in railway-infrastructure procurement

In railway infrastructure, construction and maintenance is typically procured using competitive procedures such as auctions. However, these procedures only fulfill their purpose – using (taxpayers’) money efficiently – if bidders do not collude. Employing a unique dataset of the Swiss Federal Railways, we present two methods in order to detect potential collusion: First, we apply machine learning to screen tender databases for suspicious patterns. Second, we establish a novel category-managers’ tool, which allows for sequential and decentralized screening. To the best of our knowledge, our study represents the first attempt to adapt and implement machine-learning-based price screens within the context of a railway-infrastructure market.

The mechanisms of the contract system should be simple and transparent

Procurement activities of medical institutions aimed at ensuring the provision of medical services with equipment, medicines, consumables are carried out in accordance with the competitive procedure for determining suppliers and selecting contractors. In May 2023, Federal Law No. 154-FZ of 28.04.2023 “On Amendments to the Federal Law “On the Contract System in the Field of Procurement of Goods, Works, Services for State and Municipal Needs” came into force, which simplified and accelerated procurement procedures. The key changes in the regulations of public procurement for the needs of medical institutions are considered, including a change in the approach of the legislator to determining the initial maximum contract price (IMCP). The mechanism of combating corruption in the field of procurement, manifested through a conflict of interests of procurement participants, has been studied.

An optimal sequential design in ethical allocation with an adaptive interim analysis

The present article provides a distribution-free test procedure for comparing the effectiveness of two competing treatments A and B, say, in a clinical trial. Here, the relative treatment effect is measured by the functional θ = P ( X < Y ) , where X and Y are respectively the response variables corresponding to two treatments, A and B. The treatment comparison is done through a testing of hypothesis regarding θ under a patient-benefit oriented two-stage response-adaptive design with an interim analysis in which an optimal sequential sampling scheme with equal randomisation is adopted in stage 1 and a response-adaptive randomisation is employed in stage 2 with the objective of allocating more patients to more promising treatment. The performance of the proposed procedure is compared with that of various other competitive procedures.

Personnel Competency Competitions in Russia: Increasing the Efficiency of Manager Selection for the Civil Service

The purpose of this article is to, by using the example of the Leaders of Russia competition, identify the strengths of open mass personnel competitions (OMPC) in terms of their impact on the career prospects of their participants, improving the effectiveness of personnel policy, and also spreading the notion about the importance of meritocratic principles in the selection of personnel for leadership positions in society. To do this, the article discusses the main problems that exist in Russia in the field of attracting managers at the current moment. The article highlights the advantages of OMPC: the effectiveness of the selection of candidates and competitive procedures. However, the most common criticism of the methodology and mechanisms of the "Leaders of Russia" competition is also considered: some of the problems have an accessible solution, others can only be corrected to a small extent without deviating from the declared goals and principles of the competition - the thesis is substantiated that a departure from the fundamental principles of OMPC is impractical. It is concluded that the introduction of a system for assessing the competencies of candidates, in which the qualities of applicants for leadership positions will be identified through a competitive selection system, will improve the quality of public administration as a whole.

Important 2021 Developments in the Field of EU Competition Procedure

Important 2021 Developments in the Field of EU Competition Procedure