How to prove to the participant of the procurement procedure that the goods offered by him do not have the status of “goods originating from the Russian Federation/Republic of Belarus”?

After the beginning of Russia’s armed aggression against Ukraine in 2022, Ukrainian enterprises stopped supplying materials from the Russian Federation, the Republic of Belarus, and stopped manufacturing their products from materials of Russian and Belarusian production.

However, the audit service and other control bodies mistakenly sometimes interpret the documents for the product available in the enterprises as a document that defines the manufacturers of materials, although it cannot be considered as a document that defines the enterprises – manufacturers of materials, since it was signed and produced after conducting typical tests of the control batches of standard tests (act of standard tests) based on previously conducted tests to check products that were placed in long-term storage for that period using materials (components) from the Russian Federation, the Republic of Belarus in the production process.

The specified conclusion is a document that confirms the safety and reliability of the use of the products and its warranty period of storage, but in no way confirms the manufacturers of the materials from which the manufacturer produces the goods.

The enterprise uses materials and raw materials in accordance with the requirements of current legislation, authorized for use by the central executive body.

According to Resolution No. 175 of the Cabinet of Ministers dated 17.02.2023 “On Amendments to Resolution No. 1178 of the Cabinet of Ministers of Ukraine dated 12.10.2022 “On Approving Features of Public Procurement of Goods, Works and Services for Customers Provided by the Law of Ukraine “On Public Procurement”, on period of validity of the legal regime of martial law in Ukraine and within 90 days from the date of its termination or cancellation” it is determined that the customer rejects the tender offer with an indication of the reasoning in the electronic procurement system in the event that a participant in the procurement procedure offers goods originating from the Russian Federation in the tender offer/ of the Republic of Belarus (with the exception of goods necessary for the repair and maintenance of goods purchased before the entry into force of the Resolution of the Cabinet of Ministers of Ukraine of October 12, 2022 No. 1178 “On approval of the features of public procurement of goods, works and services for customers provided for by the Law of Ukraine “On public procurement”, for the period of validity of the legal regime of martial law in Ukraine and within 90 days from the date of its termination or cancellation”.

In case of disputes with the specified authorities, we recommend also referring to the provisions of the Customs Code of Ukraine.

According to Article 74 of the Code of Ukraine, foreign goods are released for free circulation in the customs territory of Ukraine after payment of all customs payments established by the laws of Ukraine for the import of these goods and completion of all necessary customs formalities.

Part 1 of Article 76 of the Customs Code stipulates that goods placed under the customs import regime acquire the status of Ukrainian goods.

Confirmation of the Ukrainian status of the goods specified in the first part of this article is a customs declaration, according to which these goods were released into free circulation (Part 2 of Article 76 of the Code of Ukraine).

According to Part 5 of Art. 255 of the Criminal Code of Ukraine, customs clearance is considered completed after the completion of all customs formalities specified by this Code in accordance with the declared customs regime, which is certified by the customs authority by affixing the appropriate customs security (including with the help of information technologies), other marks on the customs declaration or document that in accordance with the legislation, it replaces it, as well as on goods accompanying and goods and transport documents in the case of their submission on a paper medium.

According to parts 2 and 3 of Article 36 of the ICU, the country of origin of the goods is considered to be the country in which the goods were completely produced or subjected to sufficient processing in accordance with the criteria established by the ICU. The country of origin of the goods can be understood as a group of countries, customs unions of countries, a region or a part of the country, if it is necessary to distinguish them for the purpose of determining the origin of the goods.

Article 41 of the ICU establishes a list of documents that confirm the country of origin of the goods: a certificate of origin of the goods or a certified declaration of the origin of the goods, or a declaration of the origin of the goods, or a certificate of the regional name of the goods.

The specified position justifies the legality of the actions of the participant in the procurement procedure when conducting procurement as part of its offer of goods of Ukrainian origin.