As a result of the martial law regime, the operation of business under such conditions raised certain questions, namely, regarding the procurement and the critical import of the goods.
Resolution of the Cabinet of Ministers of Ukraine No. 169 of 28 February 2022 “Certain aspects of defense and public procurement of goods, works and services under martial law” amended the procurement procedure for the period of the martial law. In particular, it was allowed to carry out defense and public procurement of goods, works and services without the use of procurement procedures or simplified procurement.
The aforementioned Resolution has been already amended few times: by Resolution No. 176 dated 2 March 2022, by Resolution No. 195 dated 4 March 2022, by Resolution No. 201 dated 5 March 2022, by Resolution No. 290 dated 16 March 2022 and by Resolution No. 335 dated 20 March 2022. Certain clarifications thereto were published in the Letter of the Ministry of Economy of Ukraine No. 3304-04/9225-06 dated 4 March 2022 and in the Letter of the State Treasury Service of Ukraine No. 18-07-08/4497 dated 7 March 2022.
The Letter of the Ministry of Economy No. 3304-04/9472-06 dated 9 March 2022 also clarified that Resolution No. 169 applies to purchases with a value exceeding or equal to 50,000 UAH.
In its essence, Resolution No. 169 enshrines the following provisions.
In the procurement process the contractors must comply with the principles of promptness and compliance with the decisions taken on the protection of the national interests of Ukraine, ensuring the needs of security and defense and efficient use of funds, productivity.
All purchases made during the war period are not included in the annual procurement plan. Nevertheless, the purchaser/state purchaser shall publish in the electronic procurement system a report regarding the procurement contract, concluded without the use of the electronic procurement system, including the contract of purchase and all its addendums within 20 days from the day of termination or cancellation of the martial law in Ukraine or in its separate regions. It should be noted that the request for disclosure does not apply to agreements containing restricted information.
An equally important part of the business operation during the martial law became the identification of the goods of the critical import. The executive authorities adopted a number of acts to facilitate the continuation of business operations even in such conditions.
By Resolution No. 153 of 24 February 2022 the Cabinet of Ministers of Ukraine also significantly expanded the list of critical imports. Resolution No. 289 of March 16, 2022 introduced certain amendments and consolidated the criteria for defining critical imports. In general, the list included the following categories of goods:
Meat, milk, poultry, eggs, corn, sunflower, vegetables, fruits, porridge, tea, cereals, crops, animal or vegetable fats and oils, juices, sugar
Medical products and medicines, blood of people and animals,
body armor, armor plates, helmets, bags, military tactical uniforms, sleeping bags, mats, thermal insulators,
optical instruments for surveillance, unmanned flying machines,
oil and petroleum products, coal,
insecticides, herbicides, fungicides,
nuclear reactors,
paints and inks, rubber tire tubes, craft paper, lint fabrics,
glass, metalware, pipes, boilers, turbines,
motor vehicles et cetera
It should be noted that the list of the goods is not exhaustive. As mentioned above, the Resolution No. 289 set the criteria to define the goods of the critical import under martial law in one of the four sectors: energy, security and defense, life support to population and operation of manufacturing entities.
In the energy sector the goods of the critical import should comply with one of the following criteria:
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needed for energy resources (petroleum products, oil, gas, electricity, coal);
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needed to ensure energy security of Ukraine (operation of nuclear power plant, electricity, dispatching).
In the security and defense sector the following goods are considered of critical import:
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necessary to satisfy the needs of the Armed Forces of Ukraine, other armed forces, the Ministry of Defense;
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raw materials or means of production to execute mobilisation tasks (orders).
In the life support sector, the goods of the critical import are:
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those belonging to the deficit groceries, lack of which may lead to the humanitarian and food crisis;
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the complementary parts of the operation cycle of the critical food products;
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primary or bulk packaging for food products;
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those which are required to ensure non-stop operation of the transport;
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those belonging to the medical supplies, immunobiological medicines (vaccines), medical devices, supplementary parts thereto, medical equipment.
In the sector of operation of manufacturing entities, the goods of the critical import are the raw materials or the complementary parts of the operational cycle of Ukrainian entities, without which it is impossible to manufacture the goods supplied to the internal market or exported.
Therefore, the companies were given the opportunity to submit their applications to the Ministry of Economy of Ukraine and to justify the necessity to include certain goods to the list.
To find the full and updated list of the goods of the critical import, please follow the links below.
Besides, in case of additional questions regarding procurement or the goods of critical import it is advised to contact the Business ombudsman council via business support line.
Useful references:
Resolution of the Cabinet of Ministers of Ukraine No. 176 dated 2 March 2022
Resolution of the Cabinet of Ministers of Ukraine No. 195 dated 4 March 2022
Resolution of the Cabinet of Ministers of Ukraine No. 201 dated 5 March 2022
Resolution of the Cabinet of Ministers of Ukraine No. 290 dated 16 March 2022
Resolution of the Cabinet of Ministers of Ukraine No. 335 dated 20 March 2022
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