Criminal Law risks in public procurement

Serhii Kyrych, counsel at EQUITY and Bohdan Prachun, lawyer at EQUITY, prepared an analytical article entitled «Criminal risks in public procurement»

In the article, the authors reveal:

• the most common grounds for initiating criminal proceedings in public procurement;
• the approach of law enforcement agencies to classifying such proceedings under Article 191 of the Criminal Code of Ukraine;
• risks associated with «related» companies, the formation of the expected value of open tenders, and the technical requirements of tender documentation;
• explain why tender participants cannot be independent subjects of the crime provided for in Article 191 of the Criminal Code of Ukraine;
• key elements of an effective business protection strategy in such criminal proceedings.

The article emphasizes the need to change law enforcement agencies' approaches to assessing participants' actions in public procurement. It also stresses that economic pricing logic cannot automatically be interpreted as criminal activity. Only proven collusion between a tender participant and a state customer can result in the criminal liability of the tender participant's officials under Article 191 of the Criminal Code of Ukraine. Assumptions and analytical conclusions of an investigation without proper evidence should not result in pressure on businesses.