Recently, the law "On Amendments to the Law of Ukraine "On Public Procurement" and Some Other Legislative Acts of Ukraine on Public Procurement Improvement" has been adopted. According to this act, the procedure for conducting simplified procurements is changed.
According to this law part 3 of article 3, if a procurement is made in the amount of less than UAH 50 000, the customer undertakes to adhere to the basic principles of goods and services public procurement. Additionally, customers can use the Prozorro system to transparently track the procurement process.
Exactly the procurements, the amount of which does not exceed UAH 50 000, are discussed below
The voluntary decision of the customer to use the Prozorro system
In order to use this system when making purchases with the amount of less than UAH 50 000, the customer must read the relevant instructions (approved by the state enterprise order Prozorro dated March 19th, 2019 No. 10 (as amended on April 17th, 2020 No. 18) and must rely on these instructions when doing business.
This instruction provides for the use of the ProZorro system in order to select a supplier of goods and services and conclude an agreement with entrepreneurs who are not the customers.
Up to the procurement amount of UAH 50 000, the use of the ProZorro service is voluntary. If the customer refuses to use the system in some cases, he must provide an appropriate report on the procurement contract, which was concluded outside the framework of the Prozorro system. Such cases are described in this text below.
Cases when the submission of a procurement contract report is mandatory
When the customer needs to provide a report in the following cases:
- If they made a purchase of goods, services or works in the amount of up to UAH 50 000, which is confirmed by the relevant settlement documents or contracts (the waybill, receipt or sales receipt etc.) but did not use Prozorro.
It should be noted that the legislative act does not contain the information on the minimum purchase amount for mandatory reporting. According to the Ministry of Economy statements, it is recommended to report on procurements from UAH 10 to 50 000. The report must be submitted within 3 years from the date of the procurement contract conclusion.
- If the cost of works is equal to the amount from UAH 50 000 to 1 500 000 (or the cost of purchased goods is equal to the amount from UAH 50 000 to 200 000), but the procurement was not carried out according to the simplified procurement scheme in accordance with the above law part 7 of article 3
- If goods/works/services related to stem cells were purchased, but the ProZorro system was not used. The total amount of the procurement does not matter in this case (see the above law article 3 part 5 paragraph 21)
- If procurements were made through the ProZorro.Market electronic catalogs, a report will be generated and published public automatically.
In what cases is it not necessary to publish the procurement contract report?
- If the procedure for conducting simplified procurement has been applied, and the contract has been concluded in accordance with this procedure;
- An object of procurement has been acquired, which is included in the list of objects of procurement that are not subject to the law, as defined in paragraph 5 of article 3. The exceptions are procurements related to stem cells - they require mandatory reporting in all cases.
- An object of procurement has been acquired, which is included in the list of procurement objects to which the law does not apply, as defined in the Law paragraph 6 of Article 3.
Purchasing multiple procurement objects without ProZorro
According to this Law part 3 of article 3, the customer has the right to conclude both one and several procurement contracts, the cost of the procurement items in each of which is less than UAH 50 000.
In this case, several different reports can be published in the Prozorro system, and the details in them will match.
Moreover, it is possible to indicate not only the total price of the contract, but the cost of a separate procurement object in each of the contracts.
Adjustments to the annual procurement plan
Procurement planning is regulated by this legislative act article 4. Due to the fact that the preparation of an annual plan can be regarded as a prerequisite for making procurements, the customer can now adjust the annual plan according to the changes in the law, and therefore changes can be made gradually.
However, the legislation prohibits the procurements separation under different contracts in order to avoid open tenders.
Changing the essential terms of the contract
A procurement contract is a business contract that is concluded between the customer and the supplier based on the procurement procedure results and provides for payment for services, goods or works (see the Law paragraph 6 part 1 article 1).
From the definition of a public contract follows the fact that a contract that involves the report publication on a public contract, which is concluded without using the electronic procurement system, is not a public contract in the legislative sense. Therefore, the application of the Law article 41 terms to it is considered unacceptable.