Volume 12 - Issue 66
/ June 2023
155
http:// www.amazoniainvestiga.info ISSN 2322- 6307
DOI: https://doi.org/10.34069/AI/2023.66.06.15
How to Cite:
Povydysh, V., Truba, R., Skakun, I., Hryha, M., & Demenko, D. (2023). Types of administrative and legal support for the State
defense order in Ukraine. Amazonia Investiga, 12(66), 155-162. https://doi.org/10.34069/AI/2023.66.06.15
Types of administrative and legal support for the State defense order
in Ukraine
Форми адміністративно-правового забезпечення державного оборонного
замовлення в Україні
Received: May 10, 2023 Accepted: June 20, 2023
Written by:
Povydysh Vladyslav1
https://orcid.org/0000-0002-3908-6409
Truba Roman2
https://orcid.org/0009-0003-0971-8350
Skakun Iryna3
https://orcid.org/0000-0002-5074-2323
Hryha Mariia4
https://orcid.org/0000-0003-4561-712X
Demenko Oleksandr5
https://orcid.org/0009-0005-4992-9907
Abstract
The purpose of the article is to reveal the forms
of administrative and legal support for the state
defense order in Ukraine. Methodology. The
following methods are applied in the course of
the research: dialectical, analysis and synthesis,
deduction and induction, analytical, systematic,
formal and legal, legal and dogmatic, system
analyses, summarization. Research results. The
article describes the concept of legal support,
administrative and legal support and its forms.
Classification of legal forms of public
administration is proposed. Practical meaning.
The types of forms of administrative and legal
support of the state defense order in Ukraine are
determined, their characteristics are provided,
and their analysis is carried out.
Value/originality. An author’s definition of the
forms of administrative and legal support for the
State defense order in Ukraine is proposed.
Keywords: administrative and legal support,
classification, forms, public administration, State
defense order.
1
Candidate of Legal Sciences, Doctoral Student of the Scientific Institute of Public Law, Ukraine.
2
PhD in Law, Doctoral Student of the Scientific Institute of Public Law, Ukraine.
3
PhD in Law, Lecturer of the Police Law Department of the National Academy of Internal Affairs, Ukraine.
4
Candidate of Legal Sciences, Senior Researcher of the Scientific Laboratory on Crime Prevention Issues of the Scientific and
Research Institute No. 1 of the National Academy of Internal Affairs (Ukraine).
5
Candidate of Legal Sciences, Senior Researcher of the Scientific Institute of Public Law, Ukraine.
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Introduction
One of the main factors inhibiting the processes
of the state defense order formation and the
processes of restructuring and development of
the defense-industrial complex as a whole is the
lack of legislative and legal mechanisms for
regulation of the activities of subjects of arms
and military equipment production and ensuring
favorable conditions for attracting investments in
defense industrial complex of Ukraine
(Krasnykov 2016, p. 17).
The aspects of security and defense issues have
become particularly relevant recently, primarily
due to armed aggression and violation of the
territorial integrity of Ukraine, the increase of the
military power of the Russian Federation, which
have turned into a confrontation, the
consequences of which may become a global
military conflict (Povydysh 2021, p. 72). Thus,
the urgent need to modernize the national system
of state security and defense, especially in terms
of administrative and legal support, is an urgent
and obvious need.
The issue of regulatory efficiency is part of the
overall framework for administrative and legal
support of the state order for the defense
capability of Ukraine and belongs to the forms of
the latter, which, under the conditions of
comprehensive regulatory transformation,
require a modern scientific revision.
Thus, the purpose of the article is to reveal the
forms of administrative and legal support of the
state defense order in Ukraine based on the
theory of administrative and military law, rules
of national legislation and the views of scientists.
Methodology
The application of the dialectical method made it
possible to investigate the legal nature of
administrative and legal support in different
spheres of public life.
The combination of the methods of analysis and
synthesis, deduction and induction helped to
examine legal form a complex category of legal
science.
Analytical method as well as logical approach
was used for the formulation of the author’s
definition of the forms of administrative and
legal support for the state defense order.
The application of the system method along with
the system and structural, system and functional
methods were applied to propose the
classification of legal forms of public
administration.
The combination of formal and legal method and
legal and dogmatic approach were helpful when
considering organizational forms of
administrative and legal support for the state
defense order, in particular planning; marketing
research; development of core (indicative)
indicators; preparation of defense procurement
plans, formation of proposals for the
consolidated three-year plan for procurement of
defense goods, works and services under closed
procurement and its approval; establishment and
maintenance of an electronic register of
participants in the selection and performance of
public contracts (agreements).
With the help of system analyses method, the
procedure for concluding state contracts
(agreements) for procurement of defense goods,
works and services under closed procurement, as
well through the electronic procurement system,
which is applied during special period (war, state
of emergency, etc.), was investigated.
Summarization method was applied for
highlighting the forms of administrative and
legal support for the state defense order in
Ukraine.
Literature Review
The concept of "legal support" refers to the
powerful influence exercised by the state on
social relations with the help of all legal means
for the purpose of order, consolidation,
protection and development, as well as influence
on the behavior and consciousness of citizens by
declaring their rights and obligations,
establishing certain permits and prohibitions,
approval of certain legal acts, etc. (Hizhevskyi,
Holovchenko, & Kovalskyi 2003, p. 369).
At the same time, administrative and legal
support is considered as one of the types of legal
support, which is a purposeful influence on
people’s behavior and social relations with the
help of legal means (Tsvik & Petryshyn 2009,
p. 327).
Kolesnikov (2011, p. 434) defines administrative
and legal support as implemented by the state
with the help of a special mechanism for
regulating social relations, their legal
Povydysh, V., Truba, R., Skakun, I., Hryha, M., Demenko, D. / Volume 12 - Issue 66: 155-162 / June, 2023
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consolidation, protection, implementation and
development.
Bila (2020, p. 26) formulated a constructive
definition of the legal form of public
administration as a structured manifestation of
the will of the subject (in accordance with the
established legal procedure of objectification in
administrative law), authorized to perform the
functions of public administration, which causes
the establishment of legal consequences in
material and procedural relations. Such
consequences arise in accordance with the sphere
of action, the legal force and legal content of the
dictates of power, defined by the competence of
the subject of the expression of will and the stage
of the mechanism of administrative and legal
regulation.
In the formation of the essence of forms of
administrative and legal regulation in the sphere
of ensuring information security of Ukraine,
Yakovlev (2020, p. 245) proposed the author’s
interpretation of this concept as forms of legally
significant activity of state administration actors
in the sphere of regulation of the processes of
prevention, termination and liquidation of the
consequences of encroachment on information
security of Ukraine defined by current
legislation.
Zubko (2018, p. 15) defined the forms of
administrative activity of the public
administration regarding the legal regulation of
the defense-industrial complex of Ukraine as an
external manifestation of the power-
management, organizational, scientific and
research activity of the latter within the limits of
the defined competence for the regulation of
legal relations that arise, change and are
implemented in the field of public management
of the military-industrial complex of Ukraine
with the aim of guaranteeing national security
and defense and corresponding protection of the
rights, freedoms and legitimate interests of
individuals, society and the State.
Results and Discussion
Legal form is a complex category of legal
science, the importance of which for the theory
of administrative law and the practice of public
administration lies in its ability to systematize
and generalize, to form connections between
elements of legal matter and between legal and
non-legal phenomena, to give the latter legal
meaning and ensure their protection. At the
sectoral level, the legal form acquires integrative
qualities, which is manifested in the ability to
establish stable connections between the rules
and institutions of administrative law, to express
from the outside, to formalize the activities of
public administration subjects and thanks to this,
to ensure their influence on existing social
relations in the field of public administration,
which require legal regulation, to give legal
significance to the results of the activities of
participants in administrative and legal relations.
The legal form of public administration reveals
the content of the activity of the latter, which it is
advisable to be seen not only in the
implementation of the substrate of the state will,
but also in active participation in the formation
and implementation of the norms of
administrative law of self-governing
organizations and other institutions of civil
society, establishing its connections with
external environment. The legal form of public
administration has its own structure; its purpose
is to organize, regulate the content of public
administration activities, ensure a hierarchy of
rules of conduct, create and guarantee the
stability of connections both between the
elements of administrative law and between the
latter and other phenomena requiring legal
regulation in public life (Bila 2020, pp. 26–27).
Thus, the forms of administrative and legal
support for the state defense order in Ukraine are
formed external manifestations of the will of the
powerful subjects of the state defense order,
which manifest their legally significant
administrative and organizational activities
regarding the regulation of defense procurement,
organizational processes and legal procedures for
the sake of high-quality, optimal and effective
functioning of the defense procurement system,
protection of the rights and interests of business
entities in the context of the State defense order,
and guaranteeing the national security and
territorial integrity of Ukraine (Sydorova 2020).
The classification of legal forms of public
administration allows not only to study and group
the empirical set of existing external
objectification of public administration
activities, but also helps to identify existing
shortcomings in their legal regulation.
On the basis of the study of the variants of the
classification of legal forms and the practice of
public administration bodies already developed
by the science of administrative law, Bila (2020,
pp. 15–16) proposed the author’s division of
legal forms of public administration into classes
and subclasses. The basic criterion for the
classification is the function in administrative
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law. According to this criterion, legal forms of
public administration are combined into two
large, relatively independent classes of material
and procedural legal forms. For its part, the class
of material legal forms can be divided into the
following subclasses: normative acts, individual
acts, acts-plans, administrative contracts.
Procedural forms contain subclasses of
administrative procedures and administrative
proceedings. According to the content criterion,
legal forms of public administration should be
divided into classes of law-making, law-
enforcing, and interpretive forms. Each of the
above classes, except for interpretive forms, is
divided into subclasses of regulatory, protective,
and structural forms based on their functions in
public administration.
Artificial classification of legal forms is
proposed to include the following:
according to orientation (external and intra-
structural);
by degree of legal expression (main and
additional);
by the amount of regulatory influence (generally
binding and individual);
by subject composition (unilateral and bilateral
or multilateral).
Among the forms of administrative activity of the
public administration regarding legal regulation
of the defense-industrial complex of Ukraine,
Zubko (2018, p. 10) identifies:
issuance of normative and administrative acts;
conclusion of administrative contracts regarding
the objects of the military-industrial complex;
taking other legally significant administrative
actions in the field of the defense-industrial
complex;
implementation of material and technical
operations for the functioning of the defense-
industrial complex.
At the same time, such form of administrative
activity of the public administration as issuing
normative acts is characterized by the following
features:
1) it is the most common and primary form of
administrative activity, which is carried out
by a wide range of subjects;
2) is official in the public administration of the
defense-industrial complex;
3) expresses the will of the subject, because in
its use, certain legal relationships are
formed, changed and terminated, since its
basis is the creation of administrative law
norms in the field of the defense-industrial
complex;
4) aimed at guaranteeing national security and
defense.
Yakovlev (2020, pp. 242-243) classifies forms of
administrative and legal regulation in the field of
ensuring information security of Ukraine by the
legal consequences into law (those that entail
legal consequences) and organizational (those
that do not entail legal consequences) ones. Thus,
the legal forms are the issuance of normative and
individual acts on the state administration
aspects, implementing information security
(normative and individual) and the execution of
other legally significant actions in the field of
information relations.
Organizational forms are represented by
planning and application of organizational
measures and the implementation of material and
technical actions. The first include training and
deployment of personnel, departmental and
public control of the activities of authorized
agencies, events aimed at improving the
functioning of the body (experience exchange,
thematic conferences, professional seminars),
professional collective discussion of
organizational issues (meetings, boards, etc.).
The implementation of organizational actions
does not require the development and adoption of
special legal acts and is carried out in the course
of everyday management activities. Securing of
material and technical actions is designed to
ensure the effectiveness of management
activities in the specified area. In particular, it is
record keeping, use of special equipment,
technical improvement of the material base.
Planning is a mandatory form (in our opinion) in
the field of defense procurement, so according to
the Law of Ukraine "On Defense Procurement"
(Law of Ukraine No. 808-IX, 2020), planning of
the procurement of goods, works and services for
defense purposes is a component of defense
planning and is carried out taking into account
the amount of expenditures necessary to finance
the security and defense sector.
The basis for planning the procurement of
defense goods, works and services is the needs,
priorities of the security and defense sector, the
amount of financial resources necessary for their
satisfaction, provided by strategies, other
strategic documents and state programs in the
spheres of national security and defense, the
development of the components of the security
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sector and defense, in particular, equipping them
with modern weapons and military equipment,
creating the necessary stocks of material and
technical means and the necessary capacities of
the defense-industrial complex, implementation
of other measures to strengthen the state's
defense capability. The Cabinet of Ministers of
Ukraine determines the order of planning,
formation, features of deployment, adjustment of
defense procurement, monitoring and reporting
on compliance, disclosure of information.
Planning the procurement of defense goods,
works and services is a component of defense
planning carried out by the state customers. Its
grounds are the needs and priorities of the latter,
provided for by strategies, other strategic
documents and state programs in the national
security and defense areas, in accordance with
the amount of financial resources allocated in the
State budget for each customer.
State customers when planning defense
procurement:
prepare and submit proposals for draft state
programs in the spheres of national security and
defense in the medium-term budget planning of
defense procurement;
as chief budget managers prepare proposals in
the Budget Declaration and make budget
requests taking into account activity plans,
forecast and program documents in the named
spheres and submit them to the Ministry of
Finance in the prescribed manner;
in short-term budget planning of defense
procurement, they prepare three-year and annual
plans for the procurement of defense goods,
works and services for defense purposes and
proposals for a consolidated three-year plan for
such procurement, taking into account the
expenditures allocated in the budget and State
budget forecasts.
Another types of organizational measures in
defense procurement sphere are:
Marketing research of the market of defense
goods, works and services. In order to plan the
procurement of the named products and prepare
for procurement process, state customers can
conduct marketing research, preliminary market
consultations for the purpose of market analysis,
including requesting and receiving
recommendations and information from business
entities, which can be used by the state customer
during the preparation.
Marketing research is carried out by state
customers in order to obtain and periodically
update information on:
business entities that can be involved in defense
procurement as executors of state contracts
(agreements); the nomenclature of defense
goods, works and services that can be
manufactured, performed and provided by such
business entities; prices for such products.
Market analysis is carried out by state customers
through analytical research, preliminary
consultations, in particular, sending requests to
business entities for information on economic
activity, conducting negotiations and receiving
recommendations.
The results of marketing research can be used
during the preparation and drawing up of three-
year and annual procurement plans, basic
(estimated) indicators.
Development of core (indicative) indicators,
preparation of defense procurement plans.
During the planning of defense procurements,
State customers assume that the procurement of
defense goods, works and services is carried out
exclusively according to defense procurement
plans. For three-year and annual planning, they
use the Unified Procurement Dictionary, codes
and names of other relevant classifiers of the
subject of procurement (if available).
The three-year procurement plan is drawn up by
state customers in the form of open data, contains
indicators of the annual procurement plan and
forecast procurement indicators for the next two
budget periods. The annual plan for defense
purposes and changes to it are published on the
official website.
The named plans and amendments to them are
pre-agreed with the Committee of the Verkhovna
Rada of Ukraine, whose competence includes
issues of national security, defense and
intelligence.
Formation of proposals for the consolidated
three-year plan for procurement of defense
goods, works and services under closed
procurement and its approval.
Following approval by the Cabinet of Ministers
of the draft law on the State Budget of Ukraine
for the planned budget period, the main body in
the field of defense procurement planning
develops within a three-day period a calendar
schedule for the formation of a draft consolidated
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three-year plan for the procurement of goods,
works and services for defense purposes under
closed procurement (core (benchmarks)
indicators) and brings it to the attention of the
State customers.
Proposals for a consolidated three-year
procurement plan for defence goods, works and
services are developed by state customers. The
latter develop and submit to the main body in the
field of defense procurement planning in
accordance with the calendar schedule the
proposal for the project of a consolidated three-
year plan in the form established by such an
authority on:
planned budget period – taking into account the
expenditures provided for ensuring national
security and defense for the planned budget
period in the Draft Law on the State Budget of
Ukraine;
following the planned two budget periods –
taking into account the State budget forecast.
The creation of new and modernization, repair,
reconstruction, expansion and conversion of
existing production facilities for the production
of defense goods in accordance with the
consolidated three-year plan are carried out by
implementing the following measures:
performance of research and development works
on the creation of special means of technological
equipment and technologies;
manufacture and implementation of special
means of technological equipment;
technical re-equipment and reconstruction of
existing factories.
Such measures are included in the core
(indicative) indicators.
Establishment and maintenance of an electronic
register of participants in the selection and
performance of public contracts (agreements).
The Register is maintained for the purpose of
monitoring information on executed state
contracts (agreements), keeping up-to-date and
ensuring transparency of information on
participants in selection and executors of state
contracts (agreements), objectivity of evaluation,
selection and re-evaluation of the executors,
taking into account on their ability to produce
and supply goods, perform works and provide
services in accordance with the needs of
government customers.
The Register ensures the systematization and
retrospective analysis of data on business entities
involved in defense procurement according to the
following classification criteria: nomenclature of
goods, works, and services for defense purposes
produced by a business entity, works and
services performed by such an entity; the price
for such products, including based on the results
of previous purchases; financial and economic
condition of the enterprise; certain types of
production activity of the enterprise; availability
of the necessary production capacity and
technical capacity of the enterprise; affordability
of necessary objects of intellectual property law;
execution or participation in the research and
other works; potential grounds for refusal to
conclude a contract (agreement) based on the
results of bidding (Resolution of the Cabinet of
Ministers of Ukraine No. 363, 2021).
As for the conclusion of state contracts
(agreements), it is carried out by state customers
based on the results of negotiations and phased
negotiations in accordance with the approved
consolidated three-year plan for the procurement
of defense goods, works and services under
closed procurement. The state contract
(agreement) is concluded on the basis of standard
state contracts (agreements) approved by the
Cabinet of Ministers of Ukraine.
The selection of executors of state contracts
(agreements) under closed procurement is carried
out by the state customer through a competitive
procedure – "phased negotiations" or a non-
competitive procedure – "negotiations". The
non-competitive procedure for selecting the
executor of a state contract (agreement) based on
closed procurement is applied to procurement
from a single contractor.
After the selection of the executor of the state
contract (agreement) under closed procurement,
the state customer prepares and concludes the
state contract (agreement). The draft of the state
contract (agreement) is drawn up by the state
customer in the required number of copies,
signed by the manager or an authorized person,
sealed and sent to the economic entity
determined by the results of the procedure for
selecting the executor within the time limit
established by the legislation.
The subject of the state contract (agreement), as
a rule, must correspond to the main indicators by
name and quantity.
The terms of the state contract must comply with
the consolidated three-year plan for procurement
of defense goods, works and services under
closed procurement. The parties to state contracts
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can specify the conditions of standard state
contracts (agreements) based on the specifics of
the activities of state customers and the
peculiarities for the purchase of defense goods,
works and services.
State contract (agreement) is concluded for the
period during which there are economic
obligations of the parties arising on its basis.
The state contract (agreement) can be concluded
for no more than three budget periods based on
substantiated proposals of the executor regarding
the development of the latest (sophisticated)
samples of weapons and military equipment,
their procurement taking into account the
production cycle by the decision of the state
customer.
Note that during the special period in Ukraine,
introduction of the emergency state, conducting
anti-terrorist operation, implementation of
measures to ensure national security and defense,
repelling and deterrence of armed aggression of
the Russian, and if the information on the
purchase of goods, works and services for the
guaranteed provision of security and defense
needs is not a state secret, simplified bidding
through the electronic procurement system is
applied, which make it possible for all the
involved parties to get unimpeded access to
information resources; it means that the
electronic systems play a crucial role in public
procurement (Shmeleva 2021, p. 249).
In this case, the announcement of the selection is
placed by the state customer in the electronic
procurement system within one working day
after the procurement decision is made. The
period for submission of price proposals cannot
be less than six working days from the date of
posting of the selection announcement on the
official website of the authorized procurement
body. Simultaneously with the announcement of
the selection, the state customer also publishes
the draft procurement contract. Technical,
qualitative and quantitative characteristics of the
subject of procurement and qualification criteria
for selection participants cannot contain
discriminatory conditions and reduce the level of
competition.
The price offer is submitted by the participant in
electronic form. Information from the selection
participant on his or her eligibility, as well as
about the compliance of the product, work or
service with the technical, qualitative and
quantitative characteristics of the procurement
item specified in the selection announcement, is
uploaded into the electronic procurement system
independently.
The latter automatically assigns the time and date
of the auction. The ranking of all bids/quoted
prices submitted by the bidders is done in the
electronic procurement system automatically,
from the highest offered price/quoted price to the
lowest, and is made public automatically during
the auction.
Within three working days from the end of the
auction, the state customer examines price offer
of the selection participant, recognized by the
electronic procurement system as the most
economically advantageous, as well as other
documents, and within one working day
publishes the protocol with the shortcomings
discovered during the consideration of the price
offer. Based on the results of the latter, provided
there are no deficiencies, the state customer
makes a decision on the intention to enter into a
procurement contract and makes it public within
one working day.
The winner of the tender, within a period not
exceeding three working days from the date of
publication on the official website of the
authorized procurement body of the decision on
the intention to enter into a procurement contract,
should provide the state customer with the
necessary documents for its conclusion.
Conclusion
Thus, in the course of the research we have
highlighted and analyzed the following forms of
administrative and legal support for the state
defense order in Ukraine:
1) issuance of normative acts on the regulation
of the defense and national security sector;
2) adopting individual acts on defense
procurement administration issues;
3) planning in the field of defense procurement;
4) conclusion of administrative contracts
regarding the functioning of the defense
procurement system;
5) organizational forms lying in the
implementation of organizational measures
and the execution of material and technical
operations.
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