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Lipkan V. A.
Administrative responsibility for violation of state procurement of goods and services: [monograph] / V. А. Lipkan, M. Y. Dovgan / Edited by Dr. V. A. Lipkan. — К. : О. S. Lipkan, 2013. — 302 p. |
| ISBN 978-966-2439-46-5
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Publisher O. S. Lipkan
Administrative responsibility for violation of state procurement of goods and services
V. A. Lipkan, M. Y. Dovgan
| Development Editor: Anriy Kovalchuk
Assistant Editor: Rostislav Kaluzny Aditorial Assitant: Oleksiy Piddubny Technology Project Manager: Catrin Boyko Marketing Manager: Irina Mychaylenko Marketing Communication Manager: Olena Lipkan Art Director: Olexander Novikov Print Buyer: Dmytro Lepeshin
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Permission Editor: Olga Mashkova
Text Designer: Volodymyr Lipkan Photo researcher: Galina Lipkan Copy Editor: Olena Lipkan Illustrator: Olexander Novikov Cover Printer: Dorado Druk Printer: Dorado Druk Pro Bono Advisor: Alexander Mitroff |
| © 2013, O.S.Lipkan.
© V. A. Lipkan, M. Y. Dovgan |
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| Printed in Ukraine | |
| ISBN 978-966-2439-46-5 |
The monograph is devoted to theoretical and administrative and legal problems of administrative responsibility for violation of state procurement of goods and services in Ukraine. This papper is the first in the national administrative and legal science monographic research on the administrative responsibility for violation of state procurement of goods and services. In it, based on current legislation, scientific views, practice of law determined by place of public procurement in the system of public regulation of economic activity, The essence of public procurement, given their concept, defined the concept of place and administrative responsibility among other legal responsibility on public procurement, the concept of “administrative misconduct in public procurement” and presents the features investigated objective and subjective features of its composition, analysis of administrative penalties that apply for these violations and order proceedings on administrative offenses in public procurement.
Suggestions to strengthen the legislation that establishes administrative liability for violation of state procurement of goods and services.
Monograph will benefit graduate students, researchers and practitioners, and all those interested in gaining information society.
CONCLUSIONS
In the monograph provided a new solution of scientific task, which is to clarify the issues of administrative responsibility for violation of state procurement of goods, works and services in order to increase its effectiveness.
According to results of the research, we consider it’s necessary to formulate the most important practically meaningful and scientifically valid conclusions.
The national economy is undergoing profound social and economic changes, the essence of which is to recognize Ukraine as the country with market economy, its entry into the World Trade Organization, conducting financial, tax, social and other reforms. All these processes are taking place involving the public administration, that uses a variety of administrative and economic means and mechanisms of regulation of economic activity (legitimation activities, certification and standardization, the use of standards and limits, providing investment incentives, benefits, compensation, targeted innovations & subsidies, etc.), state orders is occupied special place among which.
The state order ― is the means of state regulation of the economy, public administration activities to ensure Priority Public Needs by attracting on paid basis of his performers, entities of different ownership forms, consisting of a combination of sequential procedures for planning, forming, placing such order, making the state contract with the winner and control of its implementation.
The state order constitutes grounds for the state contract. Ratio between these phenomena following.
Firstly, state contract is a legal means of administrative and legal realization of the state order, carried out by applying the procedural and substantive regulations of administrative and other branches of law, that define and establish the rights, obligations and responsibility of subjects of the State order, their legal status during the formation and implementation of the state order.
Secondly, the state order may be in several forms: as a means of state regulation of the economy and as a legal act, which contains a list of products, required to satisfy the state needs.
Thirdly, the adequation of state order & state contracts is theoretically and practically incorrect. State contract is an individual legal act, which shall take effect upon its signing by the customer and performer, and is a form of exercise of the rights and obligations only to those parties. Regime of the state order for the same entities much earlier arises, from the official state formulation of needs, its legal value occurs after publication of the legal act. The purpose of the supplier – making a profit, of state customer – reaching the public interests, formulated during the formalization of the order.
Fourthly, process of implementation the state order consists of the following stages: 1) formation of the state order, and 2) its placement by the conclusion of state contracts, accordance with the established procedure, and 3) implementation of state contracts for the purchase and supply of goods for state needs. Each stage ends with legally significant results: the first ― by formalization of state order, the second ― by signing of the state contract, the third, for state customer ― by juridical fixation of receiving products; for performer ― by formalization the act of putting-acceptance of the works.
Fifthly, the state order has a dual legal nature. On the one hand, it is the economic method of regulation of economic activity, and the second ― the administrative, the powerful influence that is forcing to the conclusion of state contracts to satisfy the state needs in certain areas (defense orders, the State Material Reserve).
Given the latest peculiarity, to call contradictory by nature ways of impacting on economic relations (voluntary and forced) by common name «state order» it is legally incorrect.
It is therefore proposed to reform the system of state order and to distinguish two kinds of state influence on economic activity:
a) the state order, that includes goods, works and services, procurement of which is conducted according with the Law of Ukraine «On State Procurement» and also with other normative legal acts, ie, when the order for delivery of goods, works and services, their procurement are possible under market conditions;
b) the state task, that requires mandatory implementation and is realized under special conditions of anticompetitive market environment, due to the recognition of entities only producer in Ukraine and in other cases established by law.
State Procurements ― a way of the state order, that consists in acquisition of goods, works and services by public administration for state funds on a competitive basis (and in some cases ― in the absence thereof), in accordance with the statutory procedures to meet the public interest.
The role of administrative responsibility, which performs important tasks to ensure law and order in the area of State procurement, is increasing with the decriminalization of certain offenses in the economic sphere, the possibility of punishment, not connected with imprisonment.
Administrative responsibility for breach of order of state procurement of goods, works and services is mandatory, in compliance with the established procedure application of justice (judge) to the officials, which provide state procurement, stipulated by the legislation for committing administrative offenses in the field of administrative sanctions, which are made by such persons.
Administrative offense in state procurement is considered the wrongful, guilty (intentional or careless) act or omission of the person who harms economic relations, which are protected by the legislation on administrative responsibility.
Public relations, related to the proper formation, mobilization and allocation of financial resources are the generic object of administrative offenses in state procurement. Public relations, associated with trafficking state finances, are the species object.
Contents of direct objects of administrative offenses in state procurement are determined by specific illegal actions under Art. Administrative Code 164-14, which is somehow connected to the relations, that arises in the field of state procurement.
From the objective side of administrative offenses in the field of state procurement are characterized by complicated action (as in the form of action as well as inaction) with formal composition. Complicated action can be manifested in the form of commission of alternative actions and to be continued (including non-training or advanced training). Qualifying signs such offenses may be time they occurred (in particular, failure to submit a report on the results of the procurement procedure) and methods.
Regarding the latest feature, it is necessary to recognize inappropriate using in the disposition of art. 164 of Administrative Code word «including», because it is inconcrete and enables to attribute to violations of procurement procedures of any breach, regardless of the extent of its harmful, with application the same sanctions. This situation should be rectified by, firstly, replacing the word «including» to «namely» and to give a specific list of violations, that correspond to the amount of the sanction for their commission, and secondly, the breakdown of violations at the relevant art. 164-14 of Administrative Code, with the differentiation of violations and sentences for their commission in order to ensure the principle of conformity of guilt and punishment in the administrative responsibility.
The provisions of Part 1 Article 164 of Administrative Code concerning the failure to provide information, documents and materials in the cases provided by law, are inconcrete, that can lead to incorrect qualification of the offense, because such violations are fixed, particularly in art. 164-4, 212-3 of Administrative Code.
At the same time, the sanctions for their commission are different in several dozen times. However, the law requires the customer to provide clarification about the tender documentation and the Administrative Code does not provide responsibility for committing these acts. Given the above, we offer, firstly, to cancel the responsibility for failure to provide information, documents and materials under Art. 164-14 of Administrative Code, because, for majority of such violations it is already installed. Secondly, it is necessary to supplement the article with following phrase: «the failure to provide clarification of the tender documents in cases stipulated by law».
Furthermore, the Code should be supplemented by Art. 188-39 as follows: «Failure to comply with the legal requirements of the competent authority for providing information in the field of state procurement
Failure to comply with the legal requirements of the competent authority in providing information in the field of state procurement and duly certified copies of documents or giving knowingly false information, as well as noncompliance with deadlines, established by the legislation concerning provide information, copies of documents –
entails the fine from fifty to one hundred untaxed minimum incomes.
The same actions, if repeated within one year after the imposition of administrative penalties –
entails the fine from one hundred to two hundred untaxed minimum incomes».
Despite the fact, that the Law of Ukraine «On State Procurement» defines the entities of responsibility for violations of the Act and normative & legal acts, developed in accordance with it, only officers: members of Committee on competitive bidding of the customer, members of appeal against agency (the Antimonopoly Committee of Ukraine), officials of authorities (Ministry of Economic Development of Ukraine), as well as officials of the State Treasury Service of Ukraine, the effect of Art. 164-14 of Administrative Code applies only to the members of Committee on competitive bidding of the customer.
Thus it is necessary to clearly distinguish between the offenses committed by Committee on competitive bidding as a collegiate body, and those that committed only some of its members. In determining the specific subject of the offense should be proceed with range of official duties of these persons, but also take into account the position that the members of Committee on competitive bidding shall be personally liable for their decisions.
The subjective side of administrative offenses that infringe on the established order of state procurement, characterized by guilt in the form of intent or negligence. The relevant conclusion follows from the absence in art. 164-14 Administrative Code, directions for a particular form of guilt. Offences in state procurement should be distinguished from the similar corruptive offenses. General requirement for the latest is the presence of special purpose (obtaining undue advantage or making a promise / offer of such benefits for themselves or others). This goal will be a defining feature that will separate offenses in state procurement from administrative corruptive offenses.
For violation of legislation on the procurement of goods, works and services for state funds to a person who committed an administrative offense, may be applied only a fine from the list of all available administrative penalties. In general, application of a fine is appropriate and reasonable response measures of the State for violation of the order state purchases, but to enhance effectiveness against specified types of offenses should be applied it differentially depending on the type of administrative offense and / or damage that it is given for state and local governments.
Another major drawback of Administrative Code and sanctions of art. 164-14 of it is the fact that it does not provide as additional sanctions deprivation of the right of public servants to occupy positions or engage in certain activities that will be of great importance for the prevention of crime in state procurement in our opinion.
It is necessary to shorten the deadline of imposition of administrative penalty for offenses under Art. 164-14 of Administrative Code, up to three months from the date of detection, but not later than one year from the date of its execution. Compensation for reduction of proposed deadline would be done through the implementation of authorized entities timely control over the customers of state procurement procedures.
Requires more detailed regulation and improving the quality of drafting, administrative and procedural documents on the proceedings in cases on administrative offenses in the field of public procurement. To identify a number of problems that causing the closure of proceedings helped our analysis of practice in cases on administrative offenses in this area. Of such main problems is correctness and completeness of the protocol on administrative offense under Art. 164-14 of Administrative Code. Among the main disadvantages at this procedural document are lack of guidance on the place, time of committing the offense and the essence of administrative offence, the normative act has been breached, duly certified copies of written documents on which the protocol is based, and the others.
To improve the legislation and other normative and legal acts in the field of public procurement, elimination of lacks and contradictions it is necessary to make the following amendments and additions:
― Art. 164-14 of Administrative Code «Violation of legislation on procurement of goods, works and services for state funds» shall read as follows:
«Implementation of the procurement of goods, works and services for state funds without using the procedures established by law –
entails the imposition of fine on officials from five hundred to a thousand untaxed minimum incomes.
The same actions, committed repeatedly within one year after the imposition of administrative punishment –
entails the imposition of fine on officials from a thousand to one thousand five hundred untaxed minimum incomes.
Application of procurement procedures with violation of the legislation on procurement of goods, works and services for public funds, namely: clearance of tender documents (qualification documents) with violation of the legislation on procurement of goods, works and services for state funds, evaluation of tender offers (qualification proposals) is not on the criteria and methods of evaluation to determine the best tender (qualifying offer) contained in the tender documents (qualification documentation), as well as signing with the member that won the bidding, the contract on procurement of goods, works and services for state funds on prices and terms that do not match with the requirements of competitive bidding documents (qualification documentation), displaying false information in the report on the results of these procedures, –
entails the imposition of fine on officials from three hundred to five hundred untaxed minimum incomes.
No promulgation or violation of the procedure promulgation of information regarding the procurement of goods, works and services for public funds in accordance with legislative requirements, failure to report in due course about the results of procurement of goods, works and services, as well as failure to provide clarifications on the tender documentation in cases stipulated by law –
entails the imposition of fine from one hundred and fifty to two hundred and fifty untaxed minimum incomes.
Failing of study or advanced training on the organization and implementation of procurement procedures in accordance with law –
entails the imposition of fine from seventy to one hundred and fifty untaxed minimum incomes.
― art. 43 of the Law of Ukraine «On State Procurement» to supplement with parts 2 and 3 as follows: «Misuse of state funds, received by the winner of the procurement procedure for the procurement contract entails imposition of a fine in the amount of these funds.
Inappropriate execution of the procurement contract by the winner procurement procedure of purchased customer goods, works and services for state funds, entails a fine from fifty to one hundred percent of the value of these goods and services»;
― item 3 article 12 of the Law of Ukraine «On the State Defense Order» be amended as follows: «In case of evasion of performer, determined in the order, provided by Article 7 of this Law, from signing the state contract such executor shall be responsible to a fine from fifty to one hundred percent of the value goods, specified in plan of the state defense order»;
― The order of Ministry of Economic Development and Trade of Ukraine from July 26, 2010 № 916 «On approval of the Committee on Competitive Bidding» paragraph 7, item 2 of Section III, regarding duties of members Committee on competitive bidding «get training and / or advanced training of specialists in the field of public procurement in the order, established by the Ministry of economy of Ukraine» to exclude and to supplement by it paragraphs 3 and 4 of the same section, which are determined the Acting Chairman and the Secretary.
BRIEF CONTENTS
PART 1. PUBLIC PROCUREMENT AS OBJECT OF ADMINISTRATIVE law protection ………………………………………………………………..
Chapter 1. Public procurement in the system of public regulation of economic activity..
Chapter 2. The concept and content of public procurement in Ukraine.
Chapter 3. Concepts and place of the administrative responsibility among other types of legal responsibility in public procurement.
PART 2. ADMINISTRATIVE AND LEGAL DESCRIPTION OF VIOLATIONS the government procurement of goods, works and services.
Chapter 1. Administrative misconduct as the basis of administrative responsibility in public procurement.
Chapter 2. Objective features of corpus delicts that infringe on the established order public procurement
Chapter 3. Subjective features corpus delicts that infringe on the established order of public procurement.
PART 3. Implementation of the provisions of administrative responsibility for violation of public procurement of goods, works and services
Chapter 1. Types of administrative penalties applicable to breaches of procedure for the procurement of goods, works and services for state funds.
Chapter 2. Proceedings in cases of administrative offenses related to infringements of the government procurement of goods and services
APPLICATIONS
coNclusion
tezaurus
used litErature
useful bibliography..
gratitude.
CONTENTS
BRIEF CONTENTS.
CONTENTS.
Preface.
gratitude.
PART 1. PUBLIC PROCUREMENT AS OBJECT OF ADMINISTRATIVE law protection ………………………………………………………………..
Chapter 1. Public procurement in the system of public regulation of economic activity.
Place of Public Administration in regulating economic activity
Basic Principles of public administration domestic policy in the economic sphere
Features of the public procurement system and mechanisms of public regulation of economic activity
The functions of the public administration in the economic sphere
Chapter 2. The concept and content of public procurement in Ukraine.
Concept and characteristics of public procurement
State contract as a form of public procurement
Directions reforming government contracts
Public procurement as a way to implement procurement
Foreign experience of legal regulation of public procurement (for example, Georgia)
Chapter 3. Concepts and place of the administrative responsibility among other types of legal responsibility in public procurement.
Place of administrative responsibility, among other types of legal responsibility in public procurement
The concept of administrative responsibility
PART 2. ADMINISTRATIVE AND LEGAL DESCRIPTION OF VIOLATIONS the government procurement of goods, works and services.
Chapter 1. Administrative misconduct as the basis of administrative responsibility in public procurement.
Concept and features of administrative misconduct
Signs of administrative offense in the sphere of public procurement
Concept and types of administrative misconduct in public procurement
Chapter 2. Objective features of corpus delicts that infringe on the established order public procurement
The object of administrative misconduct in public procurement
The objective side of administrative misconduct in public procurement
Chapter 3. Subjective features corpus delicts that infringe on the established order of public procurement.
The subject of administrative misconduct in public procurement
The subjective side of administrative misconduct in public procurement
PART 3. Implementation of the provisions of administrative responsibility for violation of public procurement of goods, works and services
Chapter 1. Types of administrative penalties applicable to breaches of procedure for the procurement of goods, works and services for state funds.
Concept, characteristics and types of administrative penalties
Analysis of the administrative sanctions provided for violations of public procurement in foreign countries
Chapter 2. Proceedings in cases of administrative offenses related to infringements of the government procurement of goods and services
The concept and stage proceedings on administrative offenses
Violation of the administrative case
The cases of administrative violations in the field of public procurement
View the decision in the administrative case
Implementation adopted Resolution
APPLICATIONS
coNclusion
tezaurus
used litErature
useful bibliography..
PUBLIC ORDER, PUBLIC PROCUREMENT
ADMINISTRATIVE RESPONSIBILITY..
gratitude