Instead of reducing the list of what can be bought under direct contracts, recent changes to the Law have only confused the rules.
Our country was not ready to fight COVID-19, like most countries in the world. In the spring of 2020, hospitals faced a shortage of safety products, medicines, and equipment. At the same time, time was short, and all this was needed immediately.
Back then, Transparency International Ukraine supported the removal of procurement to combat coronavirus from the scope of the Law “On Public Procurement.” The Law was amended so that certain goods, services, and works, the list of which was defined by the Cabinet of Ministers, could be purchased under direct contracts.
The overall benefits of COVID-19 procurement in the first months of the coronavirus still prevailed over all the risks. Although some procuring entities immediately started abusing the new rules, hospitals could buy everything they needed, stock up, and the market gradually returned to normal.
About a year later, in the spring of 2021, prices finally stabilized.
At the same time, some procuring entities began to use competitive procedures just a few months after the start of the pandemic — to buy through auctions on Prozorro. In particular, in this way, some of them began to purchase the very same masks. And this made it possible to significantly reduce the cost.
All in all: some procuring entities have learnt how to plan their procurement to fight COVID-19 and buy at auctions. Accordingly, even then, it was possible to start a gradual return of coronavirus procurement to the competitive field. TI Ukraine called for this to be done last autumn.
However, instead of shortening the list of what can be purchased under the COVID-19 procedure, MPs created new confusing rules with new corruption risks.
In July, the Verkhovna Rada adopted a law, which divided COVID-19 procurement into three scenarios:
Medicines can be purchased directly, but only from the list that the Cabinet of Ministers had to adopt within a month, but barely approved in two.
Any products from the defined categories can also be purchased directly:
- vaccines and medical devices for vaccination;
- immunobiological medications;
- medical equipment for COVID-19 hospitals;
- medical gas supply systems.
However, the list for them was not provided. That is, the hospital can buy any equipment for any amount without tenders.
The third scenario — the rest of the procurement transactions to combat COVID-19 can be carried out as simplified ones. Simplified procurement is the bidding that takes place even if only one participant took part. Then the procuring entity can immediately sign the contract. If there are more bids, an auction will be conducted.
What is a corruption risk? Procuring entities are not limited in any way in what they may need to fight the coronavirus. You can write in the justification that even the construction of roads is necessary to counteract COVID-19 — and buy under a simplified procedure. And it has many shortcomings: in particular, it cannot be contested, and the State Audit Service does not have the right to monitor such procurement. Thus, discriminatory requirements may be spelled out there to buy at inflated prices. The probability of being held liable for this will be scanty because the work of law enforcement officers leaves much to be desired.
How to correct this? The only way is to again amend the law “On Public Procurement” and oblige the Cabinet of Ministers to approve separate lists of what can be purchased directly without auctions to combat COVID-19, and what can be purchased under simplified procurement.
Transparency International Ukraine urges MPs to develop a corresponding draft law as soon as possible and resolve the situation.