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LAW OF UKRAINE

of December 25, 2015 No. 922-VIII

About public purchases

(as amended on 14-11-2019)

This Law establishes the legal and economic principles of implementation of purchases of goods, works and services for ensuring needs of the state and territorial community.

The purpose of this Law is ensuring effective and transparent implementation of purchases, creation of competitive environment in the sphere of public purchases, prevention of manifestations of corruption in this sphere, development of fair competition.

Section I General provisions

Article 1. Basic concepts

1. In this Law the terms below are used in such value:

1) the authorized electronic platform - the information and telecommunication system authorized by Authorized body which is part of electronic purchasing system and provides registration of persons, automatic placement, obtaining and information transfer and documents when holding procedures of purchases, using of services with automatic exchange of information, access to which is provided by means of the Internet. The procedure for authorization of electronic platforms is determined by the Cabinet of Ministers of Ukraine;

1-1) automatic indicators of risks - criteria with the parameters set in advance which use gives the chance automatically to perform the choice of procedures of the purchases containing signs of violations of the law in the sphere of public purchases;

2) the affiliated companies - divisions of the customer which property and transactions are specified in the consolidated balance of the customer, or subjects of managing concerning which the customer exercises control or which together with the customer are under control of other subject of managing;

3) the web portal of Authorized body concerning purchases (further - the web portal of Authorized body) - the information and telecommunication system which part the module of electronic auction and the database and which is part of electronic purchasing system are and provides creation, storage and promulgation of all information on purchases, running an electronic auction, automatic exchange of information and documents and use of services with automatic exchange of information, access to which is provided by means of the Internet. Ensuring functioning of the web portal of Authorized body is performed including due to provision to the authorized electronic platforms of paid access to the module of electronic auction and the database. The procedure for provision of access and the amount of payment are established by the Cabinet of Ministers of Ukraine;

4) activities in certain spheres of managing - the activities performed in one or several of the following spheres:

ensuring production, transportation, delivery and gas storage;

ensuring production, transportation and delivery of heat energy;

ensuring production, transfer, distribution, purchase and sale, delivery of electrical energy, centralized dispatching (operational and technological) management of the integrated power system of Ukraine;

ensuring production, transportation and supply of drinking water, ensuring functioning of centralized water disposal;

provision of services on use of infrastructure of rail transport public, ensuring functioning of urban electric transportation and operation of its objects for provision of services for transportation;

provision of services of bus stations, ports, airports, services in aeronautical servicing of flights of aircrafts;

rendering services of mail service, geological studying (including trial development of fields) oil-and-gas subsoil, coalfields and other types of solid fuel;

ensuring functioning and operation of telecommunication networks of fixed telephony public or provision of public telecommunication services;

ensuring transportation, storage, conversion and oil products crude;

ensuring functioning of the market of electrical energy, the market "for the days ahead" and the intra daily market, the balancing market, the market of support services, and also provision of services of the administrator of calculations, the administrator of commercial accounting, the operator of the market, the guaranteed buyer according to the Law of Ukraine "About the market of electrical energy", provision of support services in the market of support services and services in providing public concerns in the course of functioning of the market of electrical energy according to the Law of Ukraine "About the market of electrical energy".

development, production, realization, repair, upgrade and utilization of arms, military equipment, military weapon and ammunition to it, the organization, coordination, and also directly deliveries of goods, performance of works and rendering services to accomplishment of the state defensive order.

Such activities are not considered activities in certain spheres of managing:

production and delivery of heat energy to networks public if such production is consequence of other productive activity of the customer, except the activities performed in the spheres determined in this Item, at the same time delivery of heat energy is performed only for the purpose of economical operation of production capacities of the customer, and the income from these activities does not exceed 20 percent of the annual average income for the previous three years, including the income for the current year;

production, transfer and delivery of electrical energy to networks public if such production, transfer and delivery necessary for consumption by the customer for implementation of other productive activity, except the activities performed in the spheres determined in this Item, and supply rate of electrical energy by the customer to networks public depends on the level of its own consumption provided that own consumption is at least 70 percent of the total amount of the electric power made by the customer calculated by annual average indicators of production for the previous three years including indicators for the current year;

production, transportation and supply of drinking water to networks public if such production, transportation and delivery are necessary for consumption by the customer for implementation of other productive activity, except the activities performed in the spheres determined in this Item, and supply rate of drinking water the customer for general use depends on the level of its own consumption provided that own consumption is at least 70 percent of the total amount of the drinking water made by the customer calculated by annual average indicators of production for the previous three years including indicators for the current year;

5) the purchase agreement - the agreement signed between the customer and participant on the results of the procedure of purchase also provides provision of services, performance of works or acquisition of property right to goods;

6) electronic purchasing system - the information and telecommunication system providing holding procedures of purchases, creation, placement, publication and exchange of information and documents in electronic form which part are the web portal of Authorized body, the authorized electronic platforms between which automatic exchange of information and documents is provided;

7) ensuring agreement performance about purchase - provision of ensuring obligation fulfillment of the participant before the customer according to the purchase agreement;

8) providing the tender offer - provision of ensuring obligation fulfillment of the participant before the customer, arisen in connection with submission of the tender offer, in the form of such providing as guarantee;

9) customers - the public authorities, local government bodies and bodies of social insurance created according to the law and also legal entities (the companies, organizations, the organizations) and their associations which provide needs of the state or territorial community if such activities are not performed on industrial or commercial basis, in the presence of one of the following signs:

the legal entity is manager, the receiver of budgetary funds;

public authorities or local government bodies or other customers have by a majority vote in the supreme body of management of the legal entity;

in the authorized capital of the legal entity the state or municipal share fraction (share, shares) exceeds 50 percent.

Legal entities and/or subjects of managing who perform activities in certain spheres of managing also treat customers and correspond at least to one of the following signs:

public authorities, authorities of the Autonomous Republic of Crimea, local government bodies possess share in the authorized capital of the company in the amount of more than 50 percent or such bodies have by a majority vote in the supreme body of the subject of managing or the right to appoint more than a half of structure of executive body or the supervisory board of the company;

availability of special or exclusive rights;

10) information resource of Authorized body - the website which filling performs Authorized body and on which free consultations concerning purchases, access to which is provided through the Internet, are provided;

11) purchase monitoring - the analysis of observance by the customer of the legislation in the sphere of public purchases at all stages of purchase for the purpose of prevention of violations of the law in the sphere of public purchases;

12) the most economic offer - the offer recognized as the best by results of assessment of tender offers according to article 28 of this Law;

13) the announcement of holding procurement procedure - the announcement of carrying out open tenderings, the announcement of carrying out competitive dialogue;

14) body of appeal - Antimonopoly Committee of Ukraine;

15) the winner of procurement procedure - the participant whose tender offer answers all criteria and conditions determined in the tender documentation, and acknowledged by the most economic and to whom the customer reported about intention to sign the agreement, or the participant to whom the customer reported about intention to sign the agreement by results of application of negotiation procurement procedure;

16) the connected person - person answering to any of the following signs:

the legal entity who exercises control over the participant of procurement procedure or is controlled by such participant of procurement procedure or is under general control with such participant of procurement procedure;

the physical person or members of his family exercising control over the participant of procurement procedure;

office (official) face of the participant of procurement procedure, authorized to perform on behalf of the bidder the legal acts directed to establishment, change or the termination of the civil relations and members of the family of such office (official) person;

physical persons - members of tender committee, the head of the customer and/or members of their families which exercise control over participants of procurement procedure or authorized to perform the legal acts directed to establishment, change or the termination of the civil relations on behalf of the bidder.

Control is understood as possibility of implementation of decisive influence or decisive influence on economic activity of the bidder is direct or through the bigger number of the related physical persons or legal entities which is performed, in particular, by realization of right of possession or use of all assets or their considerable share, the rights of the solving influence on forming of structure, results of vote, and also transactions which give the chance to determine conditions of economic activity, to give instructions, obligatory to execution, or to perform functions of governing body of the bidder, or ownership of shares (share, the block of shares) which constitutes at least 25 percent of the authorized capital of the participant of procurement procedure.

For physical person the total amount of ownership of shares in the authorized capital of the bidder is determined depending on amount of the corporate laws which are in total belonging to such physical person, members of his family and legal entities who are controlled by such physical person or members of his family.

For the purposes of this Law spouses, children, parents, brothers and sisters, the grandfather, the grandmother, the grandsons, adoptive parents adopted, and also other persons, on condition of their permanent residence together with the connected person and maintaining reckon with it general economy as family members;

17) services - any subject of purchase, except goods and works, including transport services, development of technologies, scientific research, research, developmental developments, medical and consumer services, leasing, lease (lease), and also financial and consulting services, running repair;

18) purchase subject - goods, works or services which are bought by the customer within the single procurement procedure concerning which participants are allowed to submit tender offers or offers at negotiations (in case of application of negotiation procurement procedure). The subject of purchase is determined by the customer according to the procedure, established by authorized body;

19) adjusted price - the price specified by the participant in the tender offer and counted taking into account indicators of other evaluation criteria on the mathematical formula determined by the customer in the tender documentation;

20) public purchase (further - purchase) - acquisition by the customer of goods, works and services according to the procedure, established by this Law;

21) the framework agreement - the agreement which is signed by one or several customers (the centralized purchasing organizations) according to the procedure, established by this Law, with one or several participants of procurement procedure for the purpose of determination of the main conditions of purchase of separate goods and services for the conclusion of the corresponding purchase agreements during effective period of the framework agreement;

22) works - designing, construction new, expansion, reconstruction, capital repairs and restoration of the existing objects and constructions of production and non-productive appointment, work on regulation in construction, exploration works, technical retrofitting of operating plants and covering notes to service works, including geodetic works, drilling, seismic researches, aero - both the satellite photographing and other services included in the estimated cost of works if the cost of such services does not exceed the cost of works;

23) system of cloud computing - system in which the ensuring access model on demand to general set of dynamically distributed adjusted computing resources (including intrasystem networks, servers, storages of data, appendices and services) which can be quickly provided and released, through global data transmission networks with the minimum managerial measures and/or the minimum vendor interaction of cloudy services is implemented;

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