ADMINISTRATIVE AND LEGAL CONSEQUENCES OF FAILING TO USE OPEN TENDERS IN PUBLIC PROCUREMENT UNDER MARTIAL LAW CONDITIONS

Abstract

The article examines the administrative-legal consequences of not using open tenders in the sphere of public procurement under martial law. It is argued that the mere failure to use open tenders cannot be viewed as a violation of the law, as its legal assessment depends on the existence of a legally defined ground, the conformity of factual circumstances to that ground, and adherence to the established procedure for the contracting authority’s decision-making and implementation. The concepts of «non-use of open tenders,» «procurement without the use of open tenders,» and «evasion of open tenders» are distinguished, and the limits of the contracting authority’s administrative discretion in selecting the procurement method are defined. The author proposes an understanding of the non-use of open tenders as a decision by the contracting authority– regulated by administrative law norms – to conduct procurement without utilizing the primary competitive procedure, provided that conditions stipulated by legislation are met. Criteria are formulated for the administrative-legal distinction between the lawful use of statutory exceptions and the unlawful circumvention of the competitive procedure; these criteria include the existence of a legal basis, the conformity of factual circumstances to that basis, the sufficiency of documentary justification, compliance with procedural and information requirements, and the absence of artificial splitting of the procurement subject matter or other methods of avoiding open tenders. A classification of the administrative-legal consequences of not using open tenders into procedural, status-related, control-related, remedial, and delictual categories is proposed. It has been established that the lawful non-application of open tenders primarily gives rise to regulatory consequences, whereas the unlawful use of exceptions triggers legal relations involving oversight, remedial actions, and liability. Particular attention is paid to state financial control and administrative liability for violations of the procedure for selecting the procurement method. A causal link is substantiated between the unjustified non-application of open tenders, the restriction of the competitive environment, and the risks of inefficient use of public funds. The study proposes the introduction of a unified test to assess the adequacy of the justification for not using open tenders–based on normative, factual, causal, alternative, evidentiary, and temporal criteria–and outlines ways to improve the administrative-legal mechanism for preventing the unjustified use of exceptions to the competitive public procurement process.