scholarly journals Arbitrability of Procurement Disputes

JURIST ◽  
2021 ◽  
Vol 3 ◽  
pp. 2-6
Author(s):  
Viktor V. Eremin ◽  
Keyword(s):  
Public Procurement ◽  
The State ◽  
Future Research ◽  
Wide Field ◽  
Private Law ◽  
The Public ◽  
Judicial Practice ◽  
Legal Relationship ◽  
Civil Contract

This article discusses the arbitrability of disputes, which in the domestic doctrine referred as procurement disputes. These are disputes from a number of laws related to public procurement and ordering. The article provides a brief analysis of the possibility of referring such disputes to arbitration courts. An obstacle to the consideration of these disputes by arbitration courts is judicial practice, which does not accept the use of the private-law mechanism for resolving disputes in such a publicly significant sphere as procurement for public needs. In addition, the author makes the assumption that the concept of the “public element”, which prevails in domestic judicial practice, makes it difficult to enforce the decisions of the arbitration courts on such disputes, since they inevitably have “public elements”, for example, the presence of budgetary funds in the legal relationship special contracting procedures. This concept is in contradiction with the fact that the state contract is a civil contract and, generally, is arbitrable, like other types of procurement. The further possibility of applying arbitration proceedings in procurement disputes is extremely controversial and leaves a wide field for future research.

scholarly journals Public Interest Opposite the Freedom of Contractual Will in Administrative Contracts in the Republic of Albania

2017 ◽  
Vol 6 (s2) ◽  
pp. 37-48
Author(s):  
Artan Spahiu
Keyword(s):  
Public Interest ◽  
Legal Framework ◽  
The State ◽  
Private Law ◽  
Legal Analysis ◽  
Administrative Contract ◽  
The Public ◽  
General Arrangement ◽  
Role Of The State ◽  
The Republic

Abstract The protection of the public interest is the main principle governing the activity regulation of the administrative bodies. This activity, traditionally, has been developed through administrative acts, as an expression of the unilateral and authoritarian willpower of public authority, which creates legal consequences. The administrative act has been and remains the most important instrument for the administration bodies to accomplish their mission, but it is no longer effective. Particularly this lack of efficiency is noticed in recent years when the development of the economy and the needs of the evergrowing society have prompted the administration to adapt its activity by making use of other mechanisms “borrowed” from private law. An important part of public activity can also be achieved through the contract as a way that brings the state closer to the private, mitigating its dominant position and leaving space for the efficiency of private activity to fulfil public engagements. Such contracts today are known as “administrative contracts” or “public contracts”. The terms mentioned above are instruments that establish legal relations, for the regulation of which the principle of public interest is opposed and competes with the principle of freedom of the contractual willpower. The regulation of these types of contracts is reached through the private law, which constitutes the general normative framework of contracts (lex generalis) even for the administrative contracts. But this general arrangement will have effect for as long as it does not contradict the imperative provisions of the specific act of public law (lex specialis), which regulates the administrative procedure for the completion of these contracts. This paper aims to bring to the spotlight the way our legislation predict and regulates administrative contracts, by emphasising particularly the features of their dualistic nature. The coexistence and competition of the principles of the freedom of contractual willpower and the protection of the public interest, evidenced in administrative contracts, is presented in this paper through the legal analysis of the Albanian legal framework which regulates these contracts. Under the terms when the role of the state in providing public services tends to increase and our legislation aims the harmonization in accord with the European legislation, it is necessary to improve the administrative contract regulation and extend its scope of action.

scholarly journals Prawnofinansowy status Agencji Nieruchomości Rolnych

2017 ◽  
pp. 119-134
Author(s):  
Wojciech Fill
Keyword(s):  
Public Finance ◽  
Public Sector ◽  
The State ◽  
Significant Part ◽  
Private Law ◽  
Financial Status ◽  
Legal Personality ◽  
The Public ◽  
Executive Agencies ◽  
The Impact

The legal-financial status of the Agricultural Property Agency is complex. Rights and obligations of the financial nature of the public are interspersed with numerous powers and duties of the sphere of private law. Specific elements shaping financial status Agency are organizational relationship and the capital of other legal entities, including primarily with the Treasury and the companies controlled by the Agency. They occur in the context of normative pass Agency to the public finance sector and its companies to the category of public sector entities. In view of the takeover by the executive agencies, a significant part of the tasks previously performed by the state without legal personality, budgetary establishments, precisely in this area normative appeared completely unique opportunity to examine the impact of the construction of legal personality to changes in the shape of subjectivity.

scholarly journals Risk-based assessment model of the state and municipal procurement system

2019 ◽  
Vol 110 ◽  
pp. 02090 ◽  
Author(s):  
Elena Karanina ◽  
Ksenia Kartavyh
Keyword(s):  
Public Procurement ◽  
The State ◽  
Assessment Model ◽  
Government Contracts ◽  
Loss Minimization ◽  
Case Scenario ◽  
Public Funds ◽  
The Public ◽  
Funds Management ◽  
Procurement System

Every year, the volumes of funding in the sphere of provision of state and municipal demand increases significantly. Achieving the effectiveness of government contracts is one of the main and “eternal” problems of public funds management. For public procurement to be effective, it is necessary to meet the needs of the relevant actors, i.e. society, the state, and the private sector. In order to make a qualitative forecast of the results of public procurement placement, the development and implementation of measures aimed at improving the public procurement system, it is necessary to assess the current situation of manifestation of risks arising from the procurement of goods, works and services for state and municipal needs. For this purpose, a risk-based model for assessing the system of state and municipal procurement has been developed, which allows disclosing the nature of the risks of the procurement cycle fully and identifying a case scenario for choosing a way to loss minimization.

Problems of execution of state (municipal) contracts

2020 ◽  
pp. 88-100
Author(s):  
Tatyana Goryunova
Keyword(s):  
The State ◽  
Negative Consequences ◽  
The Public ◽  
Existing Problems ◽  
Judicial Practice ◽  
Municipal Authority ◽  
Balance Of Interests ◽  
Research Task ◽  
Contractual Relations ◽  
Private Entrepreneur

The state (municipal) contract includes a balance of interests of the public customer and the commercial executor (organization, private entrepreneur, individual). The execution of a state (municipal) contract is understood as the proper execution by both parties of their obligations. It is very difficult to observe the principle of equality of the parties in these contractual relations, given the advantages of the customer as a representative of the state (municipal) authority. We analyze the problem of execution of state (municipal) contracts. The main objective of the study is to systematize the main problems faced by the parties in the execution of state (municipal) contracts, to propose solutions to the existing problems. We denote risks in the execution of state (municipal) contracts by the parties. We analyze the problems of ensuring the execution of state (municipal) contracts, from the stage of obtaining a bank guarantee to applying for a claim on it, using the example of judicial practice. Special attention is paid to the grounds for recognition of the state (municipal) contracts null and void. As a research task, we define an attempt to assess the negative consequences for the executor of a state (municipal) contract if the state (municipal) contract is recognized as null and void. Based on the analyzed problems of the execution of state (municipal) contracts, we propose a model for minimizing the negative consequences for the parties.

scholarly journals Modern system of state procurement in ensuring innovative development of economics

2018 ◽  
Vol 11 (3) ◽  
pp. 242-248
Author(s):  
T. S. Kolmykova ◽  
E. V. Semenikhina ◽  
E. A. Alpeeva
Keyword(s):  
Public Procurement ◽  
Great Influence ◽  
The State ◽  
Economic Research ◽  
Federal Law ◽  
The Public ◽  
Modern System ◽  
Innovative System ◽  
Modern Economic ◽  
Procurement System

Public procurement is a category of the modern economic system. They have a great influence on the formation of the innovative potential of the country and the regions. The state has a powerful management impact due to the modern system of public procurement. The state optimizes budget expenditures, minimizes uncontrolled costs, regulates prices for socially and economically important groups of goods. Public procurement is a complex innovative system. It includes elements: planning, formation and carrying out of purchases, the conclusion of the contract, the control of fulfillment of obligations between the customer and the supplier. The procurement system unites relations between authorities, legal and private persons. The process of public procurement is complex. He constantly undergoes changes and additions. According to the current Russian legislation, the procurement of goods, works or services is divided according to the subject matter into two groups: 1) purchases carried out by government customers to ensure state and municipal needs, controlled by Federal Law No. 44-FZ of 05.04.2013, and 2) carried out by certain types of legal entities or corporate purchases, controlled by Federal Law No. 223-FZ of July 18, 2011. State and municipal procurement are a tool for effective impact on the development of the economy. They perform the most important functions: regulative, reproductive, stimulating, social, innovative. Thus, the study of the public procurement system today is a significant and relevant issue in the field of economic research.

scholarly journals Public Procurement as the Object of Audit and Management of the United Rural Territorial Communities in the Context of Decentralization

2021 ◽  
pp. 142-148
Author(s):  
Walery Okulicz-Kozaryn ◽  
◽  
Kateryna Melnyk ◽  
Keyword(s):  
Public Procurement ◽  
General System ◽  
The State ◽  
Economic Feasibility ◽  
Procurement Process ◽  
The Public ◽  
State Audit ◽  
Decision Making System ◽  
Control Procedures ◽  
The Impact

United territorial communities in the context of decentralization are authorized to carry out public procurement at their own discretion. However, additional responsibility reinforces the need to involve the institution of audit as a guarantor of the economic and social feasibility of the process. The purpose of the article is to determine the place of public procurement as one of the objects of the national audit system in order to increase the efficiency of management of united territorial communities. It was found that, despite the improvement of legislative regulation in the sphere of public procurement, the illegal, often “lobbied” use of budgetary funds requires increased control, both from the state and the public, and from the actual administration of the united territorial communities. The theoretical and methodological foundations of the state audit of public procurement were revealed. The directions of improving the state audit of the public procurement process in united rural territorial communities were proposed, while observing the priority of sustainable development goals. The capabilities of the electronic public procurement platform Prozorro were critically assessed. The reasons and prerequisites for the elimination of the corruption component of the public procurement process at the local (united territorial communities) and global (national economy) levels were identified. The need for IT-auditing in the field of legality and economic feasibility of using budget funds in rural territorial communities was proved. The impact of the audit on the general system of information and analytical support of management consists in assessing the effectiveness of activity processes, information processes and control procedures in order to improve the management model of activity and, accordingly, the decision-making system.

scholarly journals STANDARDIZATION OF PUBLIC AUDIT OF PUBLIC PROCUREMENT IN UKRAINE THROUGH THE INTRODUCTION OF COMPLIANCE AUDITS

2020 ◽  
pp. 156-174
Author(s):  
Nataliya ZDYRKO
Keyword(s):  
Public Procurement ◽  
The State ◽  
International Standards ◽  
The Public ◽  
Electronic Procurement ◽  
State Audit ◽  
Financial Audit ◽  
Compliance Audit ◽  
Audit Standard ◽  
Procurement System

The independent legislative agency of Ukraine according to the international standards ISSAI in private carrying out of the state audit (including the published purchases) is made. It is established that international practice has identified three components of public audit: performance audit, financial audit and compliance audit. The necessity of standardization of the state audit of public procurements through legislative fixing of audit of conformity is proved. The main objects of compliance audit are proposed: the activities of the customer (participant), public resources and the activities of responsible government agencies. Recommended main directions and procedures for compliance audit for each object and by stages of the life cycle of procurement items. Features of the audit of compliance of redistribution by the customer of various receipts for public procurement are considered. Features of audit procedures for different types of public procurement are identified. The recommended procedure and algorithm for auditing the correctness of determining the subject of procurement from the customer. The main mistakes and violations of the participants, which take place during the audit of compliance with public procurement, have been identified. The peculiarities of compliance audit at the stage of public procurement planning, pre-contractual and contractual relations in the electronic procurement system, as well as at the stage of use of procurement items are highlighted. It was emphasized that the responsible body should regulate issues related to the functioning of the electronic information system, platforms and web portal in the field of public procurement. The key elements of the Public Procurement Compliance Audit Standard (purpose, objectives, subject, objects, subjects, stages, methods, principles) are proposed.

scholarly journals The principle of morality (administrative, tax and "public") in the Brazilian Federal Constitution of 1988

KPGT_dlutz_1 ◽  
2019 ◽  
Vol 32 (3) ◽  
pp. 509-527
Author(s):  
Demetrius Nichele Macei ◽  
Francisco Cardozo Oliveira
Keyword(s):  
Tax Evasion ◽  
The State ◽  
Tax Burden ◽  
The Public ◽  
Legal Relationship ◽  
Federal Constitution ◽  
Direct Reflection

This study aims to analyze the issue of tax morality and ethical (or unethical) attitudes identifiable in the tax legal relationship, considering the performance of duties in its two faces, the public (tax authority) and the private (taxpayer). The work approaches the aspects of Tax Justice, Equity and Fair Tax, inspired by the teachings of Klaus Tipke, leading to the confirmation that a tax is sustainable not only when it respects the ability to contribute, but also when the society accepts it as legitimate and necessary, even in a context of high tax burden. Thus, for this to occur is fundamental that the State manifests an ethical posture in dealing with taxpayers and with the resource’s application, whether in order to legitimize this conduct or to inspire the taxpayers to adopt the same behavior, assuming that their misconduct (tax evasion) is a direct reflection of the State posture.

scholarly journals The State regulation of Public Procurement in Ukraine in the Context of Reforms and Integration Processes

2021 ◽  
Vol 2 (517) ◽  
pp. 35-40
Author(s):  
O. I. Laiko ◽  
Keyword(s):  
National Economy ◽  
Public Procurement ◽  
State Regulation ◽  
The State ◽  
Added Value ◽  
The Public ◽  
Goods And Services ◽  
International Distribution ◽  
Procurement System ◽  
The Impact

The article is concerned with topical issues of the State regulation of public procurement in Ukraine in the context of reforms and integration processes. The conceptual principles of regulation of the public procurement system have been formulated, taking into account the requirements and challenges of modern processes of reforms of the national economy and the implementation of the European integration vector. The public procurement system is considered as a new institutional unit in the national economy – the market for goods and services to the State-owned institutions and organizations with the involvement of budgetary funds. The significance of the public procurement system for the country’s economy as an environment for financing and implementing entrepreneurial initiatives aimed at creating high-quality goods and services, which is characterized by volumes equal to 15% of GDP, is substantiated. The article is aimed at defining the theoretical-conceptual and applied principles of the State regulation of the public procurement system in Ukraine in the context of efficient implementation of reform goals and taking into account the impact and challenges from the active participation of the national economy in the international distribution of labor in the course of integration processes with the EU countries. The article defines the key directions of the State policy on the regulation of the public procurement system, which include: stimulating the economic development of the entrepreneurial sector and overall economic growth on the basis of sustainability and balance; support for the production of domestic goods and services with high added value; stimulation of production of goods and services using local resources; stimulating the creation by domestic producers of both goods and services of cooperation associations in order to use the opportunities for the distribution of labor to create more competitive products; supporting the formation of an economic basis for the development of territorial and economic entities in the regions of Ukraine. As for the above defined directions of the State regulation of the public procurement system in Ukraine, appropriate measures have been proposed, the implementation of which is expected to contribute to the strengthening of the national economy and does not contradict the provisions of ratified international agreements.

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