Legal Regulation Of Public Procurement Research Articles

Features of Delimitation of Crimes Provided for in Articles 285 of the Criminal Code and 286 of the Criminal Code when they are Committed in the Public Procurement

The specifics of the criminal law regulation of liability for abuse of official powers and their excess committed in the field of public procurement are determined by the specifics of the regulation of the activities of officials participating in this sphere within the framework of their “procurement” and related functions. The correct qualification of acts committed in the field of public procurement requires reference to numerous regulations of the legislation on the contract system and on the procurement of goods, works, services by certain types of legal entities. The need to refer to the legislation on the contract system and on the procurement of goods, works, services by certain types of legal entities in the qualification of abuse of official powers and their excess arises when determining the content of the signs of the subject and almost all the signs of the objective side of the deed. Industry legislation in the context under consideration is characterized by high dynamism, “layering”, a significant number of contradictions and shortcomings. These circumstances determine errors and lack of uniformity in judicial practice when distinguishing crimes provided for in Articles 285 of the Criminal Code and 286 of the Criminal Code when they are committed in the field of public procurement. Homogeneous, and in some cases identical criminal actions of customer officials – violations in the pricing of goods, works, services; actions restricting competition (inaction); violations of the established procedure for concluding (changing, terminating) state and municipal contracts; violations in the acceptance of delivered goods (work performed, services rendered), etc. – may receive different criminal legal assessment. The purpose of the article is to develop recommendations and criteria for distinguishing crimes provided for in Articles 285 of the Criminal Code of the Russian Federation and 286 of the Criminal Code of the Russian Federation, taking into account the peculiarities of criminal legal assessment when committing these acts in the field of public procurement. To achieve this goal, general scientific (analysis, synthesis, induction, deduction) and private scientific (formal legal) methods of cognition were used. In the study, taking into account the recommendations of the Supreme Court of the Russian Federation, theoretical positions in the science of criminal law, the peculiarities of the legal regulation of public procurement, recommendations for distinguishing the crimes under consideration, taking into account the specifics of the situation of their commission, are formulated.

Public procurement in the system of creating conditions for the development of deep tech innovations in Ukraine

Problem setting. The European Union has long been paying special attention to stimulating innovative activity through the use of public procurement. This is emphasized both in EU directives in the field of public procurement and in specific program documents regarding the development of innovations in the European Union, in particular the new wave of deep technological innovations. At the same time, in Ukraine, the public procurement institute is currently used only as a tool for saving public funds and preventing corruption. Thus, there is a need to study the issue of public procurement as a means of state regulation of innovations in general, as well as a possible tool for stimulating deep technological innovations in Ukraine, including, considering the experience of the EU, in particular, and for the post-war reconstruction of our state. Analysis of recent researches and publications. Some separate aspects of the issue of innovation stimulation through the mechanism of public procurement were given attention in the works – V.K. Malolitneva, L.O. Berezovska, A.V. Kyrychenko, S.R. Karpenko and others. At the same time, the issue of stimulating a new wave of deep tech innovations, using the instrument of state procurement, requires a more detailed study as a separate phenomenon, including in the aspect of harmonizing Ukrainian legislation with EU directives in the field of public procurement. Purpose of the research is to determination of the place of the institution of public procurement as a tool for stimulating the development of deep tech innovations in Ukraine, as well as an analysis of the legal support for the use of public procurement as a regulation of innovative activity in the European Union and in Ukraine, including in the aspect of the need to harmonize Ukrainian legislation with EU rights. Article’s main body. The article is devoted to the study of the issue of legal regulation of public procurement as a means of state regulation aimed at stimulating innovative activity in the European Union. The value of state purchases of ready-made innovative solutions, as well as research and development works, the result of which can be innovative products, is analyzed. The main types of procurement of innovations provided for by European regulatory acts are given. It has been established that the riskiness and capital intensity of deep tech innovations indicate that the main driver, catalyst, and initiator of their development can be the state, using the mechanism of the state order. The issue of legal regulation of the use of the public procurement tool to stimulate the development of deep technological innovations in Ukrainian legislative acts has been investigated. The main legal problems of using such a tool in our country are presented, including in the aspect of harmonization of legislation in the field of public procurement with relevant EU directives. Conclusions and prospects for the development. In Ukrainian legislation, despite its harmonization and adaptation to EU law, there are no special provisions regarding procurement of innovations. At the same time, in the European Union there is a thorough and consistent approach, according to which public procurement an important and effective tool for the development of innovations, in particular, deep tech innovations. Ukraine needs more careful consideration of this practice, since post-war reconstruction requires special innovative solutions that can be found, including, with the use of public procurement.

Международное нормотворчество как детерминанта совершенствования правового регулирования государственных закупок для нужд системы МВД России

Introduction. International lawmaking is a source of a legal regulation of public procurement.
 Nevertheless, a defining of the system and the specifics of international agreements is required, regulating public procurement in the system of Russian legislative sources in this area, as well as the role of various international collaborations in determining the key aspects of the improvement of legislation on procurement for public needs (including the needs of the Russian Ministry of Internal Affairs system).
 Methods. Content analysis, descriptive and systemic methods of data analysis were used as research methods.
 Results. The characterization of international lawmaking and international organizations’ initiatives in the field of public procurement provides the following main conclusions.
 1. General provisions on procurement are contained in the universal and regional model (CIN), standard (UNCITRAL) and plurilateral (WTO) agreements, i.e. in the indicative and advisory instruments.
 The scientific discussion on the international regulation of public procurement is that the specifics of such relations do not provide for the creation of rigid norms at the cross-border level, as they affect national public order. At the same time, these acts reflect modern trends, for instance, the digitalization of state (municipal) procurement, etc. This fact proves that international lawmaking is an obvious determinant of improving the legal regulation of public procurement, including the needs of the Russian Ministry of Internal Affairs system.
 2. The private aspects of the public procurement process are fragmentarily regularized by special international agreements.
 3. There are also no separate international organizations in the field of public procurement, at the same time, all cross-border trade and economic organizations do not ignore the issues of ensuring public needs and form the norms of the «soft» law. Thus, international lawmaking determines the directions of improving the legal regulation of public procurement for the needs of the Russian Ministry of Internal Affairs system in the same way as any other public procurement, but with consideration of the specifics of ensuring the powers of the public body in question.

SPECIFICS OF LEGISLATIVE REGULATION OF PUBLIC PROCUREMENT UNDER THE LEGAL REGIME OF MARTIAL LAW AND POST-WAR RECONSTRUCTION OF UKRAINE

The article examines the transformation of legislation on public and defense procurement during the period of martial law in Ukraine. An analysis of announced public procurements in Ukraine during 2017-2022 was carried out. The regulatory and legal regulation of the sphere of public procurement and its impact on ensuring the country's defense capability, providing consumers with the necessary goods, works and services, prohibiting their implementation with individual residents, allocating funds to the affected regions of Ukraine, etc. have been studied. A classification of normative acts regulating the issue of public procurement under martial law was formed and they were divided into three groups: regulations of higher legal force governing public procurement; regulations on the introduction of martial law and its legal regime; and regulations governing public procurement under martial law. The volume of destruction and damage to objects as a result of the war (residential and administrative buildings, cultural and religious buildings, roads, bridges, railways, educational and healthcare institutions, kindergartens, energy, trade and agricultural facilities, vehicles, etc.) was studied. It has been established that public procurement will play an important role in the post-war reconstruction of the country, and therefore, the scientific community is discussing the issues of reforming its system in the future in order to achieve the goals of sustainable development, simplifying the procurement procedure, further adaptation of national legislation to the requirements of the European Union, and development of digitalization in this area, taking into account the most advanced world experience in public procurement, which will contribute to the modernization of the national economy. Ways of the development of regulatory and legal regulation of public procurement in the conditions of post-war reconstruction of Ukraine are proposed.

Legal regulation of public procurement in the EU and the EAEU: Trends to digitalization

The article touches upon some problems of legal regulation of public procurement in two organizations — the European Union (EU) and the Eurasian Economic Union (EAEU). A wide EU experience in public procurement regulation could be helpful for the EAEU, as it is facing now the same problems as the EU did, for example the digitalization of public procurement. Russian researchers often refer to European experience in order to find best practices, but the European experience in the legal regulation of public procurement is poorly examined by Russian authors. The aim of the study is to compare the process of digitalization of public procurement regulation in the EU and in the EAEU, highlight the EU instruments in this sphere which could be useful for the EAEU and point some common features and differences of the digitalization process in the sphere of public procurement in these organizations. In the article the authors compare different fields of public procurement legal regulation in the EU and in the EAEU and both general and specific instruments of digitalization in the sphere of public procurement existing in the EU and in the EAEU. The study is based on the analysis of the EU law and legal precedents. As a result the authors make a conclusion that some EU instruments of public procurement legal regulation could be applied in the EAEU or its member states law considering the difference in historical development of public procurement legal regulation of the organizations and positive experience of the EAEU member states.

Legal regulation of procurement activities in Russia, China and Mongolia: some aspects of financial control and anti-corruption

The article describes some of the features of legal regulation of public procurement in the Peoples Republic of China, Mongolia and the Russian Federation. In the article the key provisions of financial control and anti-corruption are highlighted and the priorities of state policy in these countries in the field of public procurement are noted. The legislation of China and Mongolia is analyzed from the standpoint of the possible use of their provisions to improve Russian legislation. So, the Chinese and Mongolian legislation, in contrast to the Russian, is more concise, has no reference character, etc. Purpose: All above confirms the relevance of further comparative legal analysis of the legislation of the Peoples Republic of China, Mongolia and the Russian Federation in the field of procurement. Conclusions obtained in the course of the study: To identify the distinctive points in the legal regulation of financial control and the application of measures of responsibility for crimes in the implementation of procurement activities in the Russian Federation, the Peoples Republic of China and Mongolia. Conclusions of the research: the legislation of Russia, Mongolia and China is improving methods of combating corruption offenses that are committed in the implementation of procurement activities. Despite the adoption of many legal measures, corruption crimes in procurement activities are committed quite often.

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.

Public procurement in Ukraine in the context of international requirements: the way to improve a legal regulation

The purpose of the study is to characterize the System of national legal regulation of public procurement of Ukraine, to determine the features of the impact of international law on the Ukrainian procurement system, as well as ways to improve it. The research methodology is based on an integrated intersectoral approach and a comparative approach. The effectiveness of the current legislation of Ukraine on public procurement was determined by means of the "ex post" assessment methodology, and the methodology of legal monitoring, including as a result of the study of court decisions. The results showed that the legal regulation of government procurement on the territory of Ukraine is undergoing significant changes, in connection with the harmonisation of legislation to international (worldwide and regional) standards; the majority part of the WTO GPA and Association Agreement provisions in the field of government procurement has already been implemented or is being implemented by Ukraine. Indeed, taking into account the access to the EU market obtained within the GPA framework, Ukraine has already not so many external incentives for the full compliance with the obligations to harmonize the legislation under the Association Agreement than it was expected at its signing.

THE MAIN PROVISIONS OF THE LEGAL REGULATION OF THE PUBLIC PROCUREMENT SYSTEM IN THE EUROPEAN UNION

The article presents the general characteristics and peculiarities of the legal regulation of public procurement within the European Union. Public procurement is extremely important both for European integration and for states as a whole due to the fact that it is a significant sector of the economy. To date, the issue of legal regulation of public procurement is relevant throughout the world, and the direct subject is the state itself, which is interested in their maximum efficiency. The purpose of the authors is to conduct a legal analysis of the EU Directives, as well as international treaties to which this integration association is a party, establishing common standards and norms in the field of regulation of public procurement. While carrying out this research the authors used such general scientific methods as method of scientific abstraction, qualitative expert assessment, quantitative assessment and structural analysis. The theoretical significance of the study consist of the fact that the work provides theoretical conclusions that can be used in scientific and practical developments on the problematic issues raised. In conclusion, the authors notes the effectiveness of the European system of organization of public procurement, implemented on the basis of its principles and approaches, which make it possible to form effective national systems of public procurement, corresponding to the world standards. Key words: public procurement, legal regulation, efficiency of public procurement system, European Union, World Trade Organization.

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.

Jak se upřesňuje zákon o veřejných zakázkách část 2

In the recent past, we discussed the legal regulation of public procurement in the Czech Republic. As an amendment to the Act on Procurement the European Commission. By submitting a draft amandment to the Act, Czech republic will fulfill the task of the European Commision. Minor adjustments may be made to the legislative process. However, today ́s treatise can contribute to the preparation of the addresses of the regulation (including the preparation of their internal regulations and procedures).

Improvement of Effectiveness of Legal Regulation of Public Procurement and Its Application within EU Law Context (Bratislava, 25 November and 3 December 2020)

Improvement of Effectiveness of Legal Regulation of Public Procurement and Its Application within EU Law Context (Bratislava, 25 November and 3 December 2020)

PUBLIC INTEREST IN PUBLIC PROCUREMENT

The basis of legal relations in public procurement are private and public interests. The purpose of the study is a substantive assessment of the authors hypothesis that the purpose of legal regulation and financial support of public procurement is to satisfy the public interest expressed in the form of a public need for goods, works, and services. The methodological basis of the study rests on historical and systematic approach, analysis, synthesis and comparative-legal methods. The results of the analysis of normative legal acts regulating public procurement, doctrinal literature and practice showed that public interest denounced in the form of public need is realized through public procurement. Public and private interests can be realized exclusively jointly since these needs cannot objectively be met individually. In general, ensuring public as well as private interests boils down to defining and legally securing the rights and obligations of the customer and their officials, which safeguards them in the process of meeting public needs through public procurement. The study revealed the dependence of the essence of public interest on the political regime, which determines the ratio of public and private interests. Public interest in public procurement is suggested to understand as the value-significant selective position of an official or another person authorized by the government, which is expressed in the form of the public need for the necessary benefit; gaining such benefit involves both legal regulation and financial security. The purpose of legal regulation of public procurement is to satisfy public interest. These concepts should be legally enshrined in Law No. 44-FZ.

ПУБЛІЧНІ ЗАКУПІВЛІ ЯК ІНСТРУМЕНТ ДЕРЖАВНОЇ ПОЛІТИКИ СПРЯМОВАНОЇ НА ЗАПОБІГАННЯ ТА ЛІКВІДАЦІЮ НАДЗВИЧАЙНИХ СИТУАЦІЙ, В ТОМУ ЧИСЛІ ЕПІДЕМІЙ, НА ПРИКЛАДІ КОРОНАВІРУСНОЇ ХВОРОБИ (COVID-19)

The article aims to analyze the public procurement implementation within the ordinary conditions as well as the conditions of the prevention and liquidation of emergencies (in a special situation), including epidemics, based on the case study of coronavirus disease (COVID-19). The paper offers suggestions on solving problems in public procurement implementation under conditions of prevention and liquidation of emergencies. To achieve the aforementioned goal, both theoretical (analysis, synthesis, generalization) and empirical (observation and other) methods were used. Additionally, the comparative legal method was used for the analysis of international practices (the World Trade Organization, the European Union) and the experience of the individual EU member states on the implementation of public procurement in the context of tackling the coronavirus disease COVID-19. The article provides an in-depth analysis of the legislation of Ukraine and other countries to formulate an author’s vision of ways how to improve the legal regulation of public procurement aimed at preventing or eliminating emergency situations, in particular epidemics. The authors offer the following: to expand the opportunity of using the negotiated procedure for the procurement of supplies, works or services that are necessary not only to eliminate emergencies, but also to prevent them; to empower the Cabinet of Ministers of Ukraine and the National Security and Defense Council of Ukraine to introduce the negotiated procedure for the procurement of supplies, works and services in case of special conditions; to reduce the time for the negotiated procedure implementation (up to 1 day) when emergency or pressing need purchase is necessary (for example, to prevent an epidemic); to grant the right to the Cabinet of Ministers of Ukraine to establish a list of supplies, works or services for which one hundred percent prepayment may be provided in procurement contracts.

Current State and Prospects of Legal Support for Public Procurement in Ukraine: Monitoring of Compliance with International Agreements

In the current geopolitical and economic relations between the states, in particular the relations with the participation of Ukraine, the availability of an effective and efficient mechanism for the implementation of government procurement becomes important, which is also guaranteed by international and national legal regulation. The purpose of the study is to characterize the System of national legal regulation of public procurement of Ukraine, to determine the features of the impact of international law on the Ukrainian procurement system, as well as ways to improve it. The results showed that the legal regulation of government procurement on the territory of Ukraine is undergoing significant changes, in connection with the harmonisation of legislation to international (worldwide and regional) standards, this stipulates the adoption of a large number of regulatory acts. The study proved that the majority part of the WTO GPA and Association Agreement provisions in the field of government procurement has already been implemented or is being implemented by Ukraine. Indeed, taking into account the access to the EU market obtained within the GPA framework, Ukraine has already not so many external incentives for the full compliance with the obligations to harmonize the legislation under the Association Agreement than it was expected at its signing. One cannot forget that the enhancement of Ukraine’s positions on the international stage contributes to performing its own international obligations, especially to the countries and international organizations / integrations, partners, donors and creditors.

The Role of Theory in the Study of Legal Regulation of Public Procurement

Public procurement is a mainstream of today. We can observe as the scientific field of public procurement continues to expand, since academicians in law, public administration, finance, management and information technology tend to apply their knowledge to study public procurement. Progress in public procurement is equally evident in the political and economic fields, where public procurement is closely linked to problems of social integration, economic growth and environmental sustainability. This raises important questions as to how and by which methods we should research this area. Based on the results of the study, we conclude that applying existing theories to practical challenges has great potential to generate new possible ways of solving problems in the field of public procurement. At the same time the scholars’ will help generate data for the development of new ideas, concepts and even certain theories in the field of public procurement.

The UNCITRAL model law: a guide for reforming the legal regulation of public procurement

The article presents a General description of the regulation of public procurement by the UNCITRALModel law on public procurement in 2011 as a tool for interstate integration in this area. Today, the issueof legal regulation of public procurement is relevant all over the world, and the direct subject is thestate itself, which is interested in the maximum efficiency of this process. The aim of the authors is toanalyze the above-mentioned document, which establishes common standards and norms in the fieldof regulation of public procurement. This paper presents a comparative analysis of the 1994 UNCITRALModel law on procurement of goods, construction and services and the 2011 UNCITRAL Model law onpublic procurement. This article emphasizes the legal and economic significance of public procurement.The authors ‘ conclusions are based on the work of foreign scientists and experts from international organizations.In conducting this study, the authors used such General scientific methods and techniquesas the method of comparative analysis, scientific abstraction, qualitative expert assessments, quantitativeassessments, and structural analysis. In their conclusions, the authors note that effective achievementof public procurement objectives can only be achieved through interrelated and consistent proceduresbased on the basic principles and conditions contained in the 2011 UNCITRAL Model law on publicprocurement.Key words: UNCITRAL, public procurement, efficiency, transparency, model law.

ПУБЛІЧНІ ЗАКУПІВЛІ ЯК ПІДСТАВА ВИНИКНЕННЯ ПРАВА ДЕРЖАВНОЇ ВЛАСНОСТІ 30 ПОРІВНЯЛЬНА ЦИВІЛІСТИКА

У статті досліджуються особливості правового регулювання публічних закупівель як підстави виникнення права державної власності. Проаналізовано, у яких випадках для набуття державою права власності необхідно звертатися до процедури публічних закупівель. Здійснено порівняння старої та нової редакції Закону України «Про публічні закупівлі». Виявлено позитивні зміни у новій редакції Закону, а також недоліки, що залишилися. Запропоновано звертатись до європейського досвіду з метою вдосконалення правового регулювання процедури публічних закупівель.

ПЕРВООЧЕРЕДНЫЕ МЕРЫ НОРМАТИВНО-ПРАВОВОГО РЕГУЛИРОВАНИЯ СИСТЕМ Ы ГОСУДАРСТВЕННЫХ И МУНИЦИПАЛЬНЫХ ЗАКУПОК

The paper considers innovations in the field of legal regulation of public procurement at the last stage of the reform carried out in the public finance management system. The main attention is paid to filling the gaps in the legislative framework of the contract system in the field of procurement through the introduction of more effective instruments in 2018–2019, measures are considered that can increase the efficiency of the procurement process, and the conclusion is drawn about the effect of procurement on the development of individual sectors of the economy.

Historical roots of legal regulation of public procurement in the EU

Historical roots of legal regulation of public procurement in the EU