Field Of Public Procurement Research Articles

The concept of "void contract" in public procurement

The way of origin and consolidation in the public procurement procedure of the institute of a void contract, which was first formulated as "the result of invalid bidding", is analyzed.
 The scientific developments devoted to the issues of voidence of transactions and scientific research in the field of public procurement in Ukraine are summarized.
 The author's definition of the procurement contract is given: it is an agreement between the Customer and the Participant (more parties), aimed at establishing, transferring or terminating property rights and obligations, which is concluded as a result of the procurement procedure and provides for ownership of property services or works.
 The grounds for declaring the procurement contract null and void are listed, namely: concluding a procurement contract before or without the procurement procedure, concluding a procurement contract that differs from the content of the tender offer / offer based on the results of the electronic auction; concluding an agreement during the period of appealing the procurement procedure to the Antimonopoly Committee of Ukraine; concluding a contract in violation of the terms.
 The main conceptual differences between a void contract in public procurement and the civil law doctrine of a void transaction are established and characterized. The main difference from void transactions is that the parties and third parties do not have to obtain a court decision to apply the consequences of declaring a transaction invalid, but in cases established by the Civil Code of Ukraine, a void transaction may be recognized by a court as valid.
 The notion of "void contract" in public procurement is critically analyzed through the prism of understanding and essential conditions of general civilization of invalid contract, as it is not possible to recognize such a contract valid in court.
 The definition of a void contract in public procurement as one that violates public order, is concluded in violation of the procedure provided by law, and makes it impossible to recognize it valid in court.

Legal regulation of public procurement: the EU experience

The article analyses the development process and establishment of the public procurement institute in Ukraine and foreign countries, examines the organizational and legal regulation of public procurement in Ukraine, identifies legal regulation of public procurement in the European Union and ways to implement the experience of European legislation in the field of public procurement in Ukraine.

Decartelization of the economy: working model, alternative and combined approaches

The article examines the concept, prehistory and modern practice of cartelization of the Russian economy. The key factors of the growth of cartelization are highlighted, the main approaches to modernization of the modern state policy on decartelization of the Russian economy are formulated. The intensive control over tenders by the antimonopoly bodies, Federal Treasury, Accounting Chamber and Government customers made it possible not only to reveal a large-scale practice of artificial bidding prices regulation using cartel schemes but also to reveal signs of a system of organized abuse in the field of public procurement, among which the cartel is not the most dangerous crime. Currently, the decisions on admissibility of business entities agreements in main areas of market relations should be taken in terms of facilitating the transition to an innovative digital economy, overcoming the general economic crisis, reinforced by the COVID-19 coronavirus pandemic, as well as of maintaining a balance between transnational economic relations and protectionism of national jurisdictions. The most promising direction for the formation of common approaches to countering cartelization of digital economy might be an initiation of the development within the framework of UNCITRAL (UN Commission on International Trade Law) of a model law of the appropriate content, which refers to the form of "soft law", as well as of similar EAEU model law.

Problems of Providing Preferences to Small and Medium-Sized Businesses in the Field of Public procurement (Including in the Light of the Pandemic): Foreign and Russian Experience

Among the most highly sought measures of public support of businesses are various preferences to small-scale businesses as part of the public procurement of goods and services. In light of the new coronavirus pandemic there is an active discussion of the measures related to supporting the small- and medium-scale business entities with the use of the public procurement institution. However, taking such measures may presuppose significant inherent risks, including those related to potential or real limitation of competition. In their work the authors analyze the global experience of preferential programs for small- and medium-scale business entities through public procurement, as well as specific features peculiar to the Russian legal order which may be of importance during introduction of the said measures.

Broader outcomes in procurement policy – a case of New Zealand pragmatism

PurposeThe purpose of this paper is to investigate how the underpinning ideas of public procurement allowed for broader outcomes – a more strategic form of public procurement – to emerge. The paper contributes to the literature on public procurement by empirically addressing the evolution of procurement as a government policy lever in New Zealand so as to demonstrate how policy pragmatism can ensure a shift without a complete overhaul of a complex system.Design/methodology/approachThe paper has used a single country case study to examine a recent development in procurement policy. The objectives of the paper are achieved by adopting a unique conceptual framework connecting ideas, sensemaking and bricolage.FindingsThe paper provides empirical and conceptual insights about how bricolage, or policy pragmatism, aids in dealing with the constraints of ideational legacies. It demonstrates a particular form of targeting in procurement, common in public administration but not well understood in the procurement field.Research limitations/implicationsSingle country case studies lack scientific generalizability. However, they add to the canon of knowledge that is lacking in the field of public procurement in this case. They also provide a stronger starting point for further research especially with respect to comparative studies.Practical implicationsThe paper provides an excellent example of the development of procurement policy that is useful for procurement officials from other countries undergoing change or looking to update or create procurement policies. It shows a high-level process of implementation for government priority outcomes from a country well-known for its quality of public management and governance.Social implicationsNew Zealand has significant equity issues especially as related to its indigenous population. Procurement is being used increasingly as a lever to improve equity. This article includes information about New Zealand's uptake of social procurement.Originality/valueThis paper fulfils a need for greater understanding of how policy is “put together” and the dynamics at major points of change or the implications of policy changes. To the best of the author’s knowledge, this case study of procurement policy in New Zealand is original, and the author is aware of no other similar work emanating from New Zealand in the academic journals.

Public sector procurement: A private sector procurement perspective for improved service delivery

Background: Service delivery is the core business of any government around the world, especially in developing economies. The government uses various public procurement legislation that govern how public services are procured. The current procurement legislation to acquire goods, works and services for the public at large are said to be ineffective and inefficient, hindering the accelerated provision of public services.Aim: This article aimed to ascertain the degree to which public sector procurement processes can be modelled to that of the private sector to improve service delivery.Setting: Several studies have revealed a stagnating nature of service delivery in government entities when it comes to the methods used to procure public services in South Africa. The private sector also does procurement successfully; however, it is slightly different as it is not governed by rigid public procurement legislation causing unnecessary red tapes. The red tapes that are sometimes impeding the accelerated service delivery are a major cause for concern if the government was to improve service delivery at a faster and unhindered pace.Methods: The research was qualitative in nature and used unobtrusive research methods focusing on a literature review technique. The research entailed a robust examination of the existing literature and trends analysis in the field of public procurement and private sector procurement.Results: The article revealed that there are several shortcomings in the form of red tapes that the public sector procurement is currently experiencing, which can be mitigated by adopting some of the private sector operational processes. Of course, this might require a total overhaul of the current public procurement processes including some legislation in an attempt to boost service delivery. Such red tapes include inflexibility of government procurement processes to allow for innovations, long-term supplier relationships and effective communication on future government plans. As such, some of these red tapes have a huge impact on improving service delivery, especially if fraud and corruption are involved; some processes are counterproductive and they end up allowing inexperienced suppliers to be chosen who fail to deliver.Conclusion: Public procurement process in South Africa urgently needs an overhaul to adopt some of the best practices used in private sector procurement operations to improve service delivery. This is because most public resources do not yield value for money because of rigid and stifling public procurement processes.

Foreign experience in the field of public procurement and the possibility of its application in domestic practice

Foreign experience in the field of public procurement and the possibility of its application in domestic practice

Structural-functional providing of the operative-investigative crime prevention in the field of public procurement in Ukraine

The aim of the article is to determine the readiness level to prevent crime in the field of public procurement by the criminal police units of the National Police of Ukraine. The methodological basis of the study is the Constitution of Ukraine, other domestic legislative and other normative acts which regulate operational-search activities and criminal procedure, general theoretical and special legal literature, which show the topic under study, and encyclopedic sources. The method of analysis, the system-structural method, sociological methods (questioning, interviewing), formal-logical method, comparative method, modeling method are used in article. To achieve the goal of the article in the structure of the criminal police of the National Police of Ukraine were identified unites which carry out operational-search crime prevention in the field of public procurement, analyzed the structure of the units and determined their functions in crime prevention. The results of the study show that the structural and functional support of the operational-search crime prevention in the field of public procurement by the criminal police is not at the proper level.

Combating corruption in the public sector: international legal standards and their implementation in the legislation of Ukraine

Nowadays, one of the reasons for the ineffective fight against corruption in the budget system is certain discrepancies and inconsistencies between the legal components of the mechanism for countering this anti-social phenomenon. The lack of a clear definition of the limits of competence of participants in the budget process, discretionary powers in the distribution and expenditure of budget funds, conflicts in budget legislation, and the lack of real competition in the field of public procurement clearly form the main corruption risks for all participants in these legal relations. The purpose of the study was to analyse the international legal mechanisms for combating corruption and find ways to implement them in Ukrainian legislation. The development of the national anti-corruption policy of Ukraine in the public sector as a subject of international anti-corruption law is determined by a number of the following national and external factors: 1) Ukraine's accession to the universal and regional conventions on combating corruption, compliance with which constitutes the main prerequisite for Ukraine's entry into the global space; 2) Ukraine's implementation in national legislation of anti-corruption international standards developed by international intergovernmental and non-governmental organisations; 3) adaptation of national legislation to European standards within the framework of the signed association agreement between Ukraine and the EU of 2014; 4) cooperation of Ukraine with international organisations, within which the international anti-corruption policy is developed and formed; 5) activities in the field of combating corruption of international non-governmental organisations, among which Transparency International constitutes an important element of the legal mechanism of the international anti-corruption legal order; 6) Ukraine’s international anti-corruption obligations to international financial institutions; 7) Ukraine's participation in international conferences and summits on anti-corruption issues; 8) Ukraine's cooperation with other states in providing relevant bodies of foreign states and receiving information on preventing and combating corruption; 9) national historical and political factors.

Features of using the electronic system ProZorro in public procurement in Ukraine: problems and ways to overcome them

Summary The purpose of the article is to study the problematic aspects of the functioning of the electronic public procurement system ProZorro in Ukraine and to develop proposals for minimizing abuses in the field of tender procedures. Research methods: The article uses general scientific research methods, in particular: synthesis analysis – in the study of scientific literature and determining the features of the electronic public procurement system ProZorro; economic and statistical analysis and comparison – with indicators of public procurement in Ukraine; generalization – when developing recommendations for minimizing abuses in the field of public procurement within the electronic system ProZorro. Scientific novelty: is to determine the main mechanisms of abuse in the field of public procurement in order to obtain illegal benefits: the fragmentation of contracts and the development of sub-threshold trade procedures and justification of ways to minimize them. In particular, in the article It is substantiated that non-competitive tender offers carry high corruption risks and lead to inflated prices for the supply of goods, services and works. It is proposed to amend the Law of Ukraine «On Public Procurement» in order to prohibit the conclusion of additional agreements after the tender; prohibition to change the conditions of the tender and tender documentation after the announcement of tenders; prohibitions to combine goods into one lot and set maximum payment terms for delivered goods for more than 30 calendar days. Conclusions: The study concludes that the electronic public procurement system ProZorro has a positive impact on the development of public procurement in Ukraine, as it increases the transparency of bidding and tender procedures, expands opportunities for participation in tenders of small and medium-sized businesses and more. However, shortcomings, first of all, in the law enforcement and judicial system of Ukraine are caused by frequent cases of corruption schemes in the public procurement system both within the ProZorro system and outside it. Elimination of corruption schemes in the public procurement system is possible subject to amendments to the Law of Ukraine «On Public Procurement». Keywords: public procurement, ProZorro, tender, tender offer, electronic bidding, competitive and non-competitive procedures.

Розвиток публічних закупівель: від минулого до сучасного

Abstract. Introduction. Any political system exists as a set of institutions and organizations that are collectively responsible for social organization and assuming various managerial functions. Since the fundamental task of the state is to ensure sustainable economic development, the processes that can ensure certain economic shifts are almost a defining component of economic policy and are urgent. Ukraine, striving for real change, did not miss this trend of change, as the political bankruptcy of the state apparatus led to weak independence, and a huge corruption component exhausted the economy and brought Ukraine to the brink of economic crisis. The decisive way to solve this problem was the renewal of the public procurement system, governed by specific regulations, and its transfer from the shadow format to the electronic one in 2016 for public availability. An e-procurement system is a tool for detecting and combating corruption through numerous tools for monitoring and analyzing public procurement. In addition, the system is unique in its structure, since it works in cooperation with three parties – government, business, and the public. Purpose. The purpose of the article is to study and compare the laws of Ukraine "On public procurement" that were in force until 2021 and the new law that came into force on 01.01.2021. Fundamental amending and supplementing to the articles of the law are subject to assessment. Results. The issue of current innovations in the public procurement sector is investigated. The historical development of the implementation of the public procurement system on the example of "Prozzoro" is highlighted. The paper deals with the cycle and the process of implementation of public procurement, the structure of the electronic system of public procurement. The general state of functioning of electronic procurement in Ukraine and tools of the e-procurement analytics module is analyzed. Public procurement procedures contribute to the provision of society with goods, works, and services in the required quantity and quality on time and acceptable contractual relations. It is difficult to imagine the development of economic prosperity without the full functioning of the mechanism of transparent public procurement, which can ensure uninterrupted interaction between all representatives of the economic system at the macroeconomic level. The Law of Ukraine "On Public Procurement" and some other legislative acts of Ukraine on strengthening control and responsibility for violations of legislation in the field of public procurement, ensuring proper protection of the rights of public procurement participants are analyzed. The prospect of further research is to consider the content and evaluation of innovations in the Law of Ukraine "On Public Procurement" and objective conclusions regarding innovative solutions and future developments. Conclusions. The most significant achievements in the development of the public procurement system in Ukraine were achieved in the period 2016-2021 since the enactment of the Law of Ukraine "On Public Procurement" and the introduction of the electronic procurement system ProZorro. To this date, the achievements in the field of reforming the public procurement system are noticeable to the general public, because the disclosure of the system has increased the level of knowledge of citizens in this area. However, there are gaps in the legislation that do not exclude the possibility of abuse by individual bidders. This necessitates further scientific research towards the development of the public procurement system in Ukraine. The prospect of further research is to consider the content and evaluation of innovations in the Law of Ukraine "On Public Procurement" and objective conclusions regarding innovative solutions and future developments.

Digitalization of Public Procurement in the Russian Federation: Case Study

Abstract Using the case study method, the study examines the prospects and initiatives of the state that can create preconditions for the formation of new areas of legal regulation in the field of digital public procurement as well as issues of improving the mechanisms of information systems, taking into account the specifics of states with a multi-structured economy. The objective of the study is to assess the applicability of the tools for digital transformation of the Russian Federation in the field of public procurement in the context of international practice. Confirming all the advantages of the idea of digital transformation of public procurement systems, the Russian experience is intended to demonstrate what problems at the level of legislative regulation the state policy associated with the implementation of such systems can face. In this case, in contrast to foreign practices, the Russian system of electronic public procurement in the aggregate creates a single information space that, in fact, has no direct analogues and is a special example of interaction between electronic platforms in this area. In addition, the example of introducing distributed ledger technology into such systems is significant from the point of view of the functioning of electronic public procurement platforms. The results of this study and the tools used to assess legal regulation in the field of public procurement can be used by state authorities of the Russian Federation, taking into account the needs of entrepreneurs, to better assess the feasibility and consequences of participation in public procurement procedures. This study’s results can also be of relevance to researchers of comparative legislation in the field of legal regulation of public procurement.

Forms of committing corrupt abuses of public finances and ways to counteract them in Ukraine

The purpose of thearticleis a comprehensiveanalysis of forms of committingcorrupt criminal abuses, thesubject of whichispublicfinance. Theobjectis social relations in thefield of publicfinance and financialsecurity. Theauthorsemphasizetheimportance of studyforbuilding a stableeconomy and counteractingfinancialthreats.The article analyzes various definitions of the essence of finance and public finance. To achieve this goal, authors used such methods: logical, documentary analysis, logical-semantic, system-structural, formal-legal. The forms of corruption abuse, the subject of which is public finance were outlined: abuse in the field of public procurement, money laundering in the field of public finance, embezzlement and misappropriation, abusing a position of authority. Two directions of counteraction to the specified forms of infringements were offered. Today Ukraine is still one of the most corrupted.Abuses in the field of public finance are especially deleterious, as they reduce the economic potential of the state, the financial well-being of the population and create a negative image on the international stage. Taking into account the level of legislative regulation, legal awareness, legal culture and education of the population of Ukraine was proposed to combat corruption in two main areas.

Expenditures on National Projects in the Public Spending System

The paper is devoted to analyzing the category of “public expenditure”, its comparative analysis with the category “budget expenditures” in doctrinal understanding and according to the legislative definition. On the basis of relative and absolute data, the author highlights the trend towards an increase of the share of national projects in the overall structure of public expenditure, as well as the trend towards annual increases in direct expenditures from the federal budget. The author concludes that it is necessary to consolidate the thesis on priority financing of national projects in the allocation of budgetary funds at the federal law level. The author analizes the place of allocations for the implementation of national projects in the updated Budget Classification and determines a number of features of budget financing of national projects. The paper elucidates the legal mechanisms of adjustment of national projects financing on the basis of the legislation, highlights the modernization of financial instruments in the field of public procurement, trends in the field of distribution of the inter-budgetary transfers with co-financing. The author highlights the importance of retrospective analysis of information on the performance of budgetary allocations by the key spending units of federal budget funds in the previous fiscal year for the purpose of prospective planning. The conclusion is made about facilitating the integration of the format of national projects into the system of strategic planning with the medium and long-term perspective.

IDENTIFICATION AND ASSESSMENT OF AUDIT RISK AND FRAUD RISK ON THE FIELD OF PUBLIC PROCUREMENT

The need to strengthen control/audit on the field of public procurement was imposed after the enactment in 2016 of the new legislative package on the field. Starting from the legislation in the field of public procurement, from the practice in the field and the current economic context, this paper presents the procedures for assessing fraud, as well as concrete examples of indications of fraud specific to the field of public procurement. Some examples of indications of fraud identified and presented in the paper refer to: the possibility of taking bribes for the award of certain contracts, links between the persons involved in the award procedures and members of their families, disclosure of certain information concerning the offer, coercion/exclusion, dubious evaluation of bidders, procurement procedures in complicity.

Личность субъекта, совершающего преступления в сфере государственных закупок для муниципальных или государственных нужд

The article deals with the issues of the identity of the subject who commits criminal acts in the field of public procurement for municipal and state needs. The state and its law enforcement agencies reliably protect the economic security of our sovereign country, effectively countering crime in the field of state procurement, protecting the economic sovereignty of our country, protecting our state from the destructive impact of external and internal threats and factors, from dangers and various negative challenges and risks in the field of economic security of the Russian Federation.

Проблемы взаимодействия заказчика и строительного подрядчика при исполнении государственного (муниципального) контракта

The article draws a conclusion about the privileged position of a public participant in certain types of civil law relations (including the contract system in the field of procurement for state and municipal needs). Based on 10 years of experience in the field of public procurement and the analysis of judicial practice in recent years, the author identifies the most problematic aspects of the interaction of the parties to the contract regulating the relations of the construction contract: 1) issues related to the transfer of technical documentation; 2) going beyond the budget; 3) the difficulty of quickly resolving issues in the course of work; 4) signing of the necessary documents when accepting the work. The ways of solving the problems included in each of these categories are analyzed. Information is provided on the decisions of the antimonopoly and financial authorities affecting these areas. Special attention is paid to the arguments that can prove the correctness of a bona fide contractor (including in the context of the creditor’s delay, the customer’s failure to fulfill the obligation to cooperate within the framework of the contract).

Organization of the Public Procurement System in Japan and the Possibility of Applying Experience in Russia

Purpose: is to identify the features of the organization of the Japanese public procurement system and the applicability of the positive experience for Russia. For this, it is necessary to study the organization of the public procurement system in Japan, highlighting the most effective elements and tools; to show the features of the functioning of the system and possible ways of future development; to give a comparative description of the procurement systems of Japan and Russia; to suggest ways to improve the Russian procurement system, using the experience of Japan.Methods: during the work, general scientific and special research methods were used, including statistical analysis, processing of analytical data, analogies, scientific generalizations, etc.Results: as a result of the analysis of changes in the legislative framework, on the basis of which public procurement in Japan is regulated, the authors examined the qualitative characteristics of the interconnections of the procurement system participants and assessed the development prospects, incl. Special attention is paid to the content and hierarchy of regulatory legal acts regulating the scope of procurement.The important link of the author's research was the procedure for organizing procurement in the course of applying various types of procurement procedures, including open, selective and limited procurement methods. A comparative analysis of the procurement systems of Japan and the Russian Federation allowed us to determine the similarities and differences in the organization of the procurement process.Conclusions and Relevance: as a result of the analysis the validity of the execution of the state order through the competitive procurement system used in world practice has been substantiated. This formed the basis of the targeted approach and the identification of promising directions in the development of the public procurement system in Japan until 2030. The authors highlight the areas that are successfully implemented in the field of public procurement in the Russian Federation. This indicates the positive development of the Russian system, which was created taking into account the best international experience, including Japanese practice. To improve the mechanism of interaction between participants and exchange of experience in the public procurement system, directions have been identified and the most effective tools have been identified.

К ВОПРОСУ ОБ ЭЛЕМЕНТАХ КРИМИНАЛИСТИЧЕСКОЙ ХАРАКТЕРИСТИКИ СОВЕРШЕНИЯ КОРРУПЦИОННЫХ ПРЕСТУПЛЕНИЙ В СФЕРЕ ЗАКУПОК

Одним из основных факторов формирования устойчивого развития экономики любой страны на современном этапе являются государственные закупки, через которые размещаются внушительная часть заказов государственных органов за счет республиканского и местного бюджетов (в 2019 году 70 % бюджетных средств). Процесс осуществления закупок регламентирован Законом «О государственных закупках», порядка 23 приказами МФ и постановлениями Правительства. Около трети норм Закона (32,7 %) продублированы в Правилах осуществления закупок. Более того разработан аналог указанного закона – проект Закона «О закупках отдельных субъектов квазигосударственного сектора». Множественность правовых актов усложняет процесс закупок, возможности камерального контроля законности процедур, что порождает высокие коррупционные риски. Как показала практика, основными криминальными схемами остается лоббирование интересов «своих поставщиков», завышение цены, аффилированность поставщиков, незаконная «маржа», махинация с техспецификацией, подписание фиктивных актов, завышение цены. В статье даны элементы криминалистической характеристики коррупционных правонарушений в сфере государственных закупок: механизм совершения, следовая картина, причины и условия.

Socially Dangerous Consequences Of Criminal Offenses In The Field Of Public Procurement

In the article the author analyzes the national legislation, scientific research and the results of law enforcement activities of law enforcement agencies in the field of public procurement. It has been established that the opacity and inefficiency of mechanisms for controlling the public procurement process leads to the use of corruption schemes to embezzle budget funds, legalize and misappropriate them by unscrupulous officials and, as a consequence, to «shadow» the national economy.
 In the current conditions of the country’s development, corruption is perhaps the most negative consequence of criminal acts in the field of public procurement. Corruption in the public procurement system, as in any other area, is associated with the exercise of power, distribution or redistribution of material resources or funds, a phenomenon that is not new or even national.
 Another clear example of the consequences of public procurement crime is the threat of unfair competition.
 Among the abuses committed by public procurement participants, the greatest degree of security threat is conspiracy of participants. A conspiracy is an agreement between two or more participants in a procurement procedure aimed at setting the price of a competitive bidding offer or a price offer at artificial or non-competitive levels with or without the knowledge of the customer.
 The main danger of fictitious entrepreneurship is property damage to legal entities and individuals, the state, which, in turn, is expressed in concealing the facts of prohibited activities, illegal conversion of non-cash into cash, creating preconditions for tax evasion and other illegal goals, promoting legalization ( money laundering) of funds obtained by criminal means, etc.