01.10.2026
Dear colleagues, participants and customers of public procurement!
The one-month period for public discussion of the draft Law of Ukraine “On Amendments to Section XIV ‘Final and Transitional Provisions’ of the Law of Ukraine ‘On Public Procurement’,” which proposes deleting paragraph 7 of the Final and Transitional Provisions of Law of Ukraine No. 4888-IX dated 27 May 2026, has come to an end.
Over the past month, an issue that might initially have appeared to be a narrow professional discussion concerning the temporal application of a single transitional provision has developed into a much broader professional dialogue.
Today, we are talking about more than just paragraph 7.
We are talking about legal certainty, predictability of state policy, judicial practice, criminal proceedings from previous years, protection of the legitimate conduct of contracting authorities and suppliers, competition in the energy resources market and, ultimately, the extent to which individuals and businesses can rely on a rule established and explained by the state itself.
That is why, at the end of this one-month period, we consider it necessary to honestly take stock of where we stand: what the professional community has already done, where we are today and what still needs to be done.
WHAT HAS ALREADY BEEN DONE OVER THE PAST MONTH (according to the author of the article)
– The NGO “Energy Union” and Energy Club prepared and submitted to the Ministry of Economy and the Verkhovna Rada Committee on Economic Development an appeal containing alternative proposals concerning the wording of paragraph 7. In other words, the professional community did not limit itself to objecting to the proposed mechanism but put forward its own options for legal regulation.
– A legal justification was prepared and made publicly available regarding the compliance of paragraph 7 of the Final and Transitional Provisions of Law No. 4888-IX with Article 58 of the Constitution of Ukraine and Article 5 of the Civil Code of Ukraine. The document separately analyses national and European case law concerning the temporal application of legal provisions, favourable retroactivity, legitimate expectations and the principle of legal certainty.
– A separate legal memorandum was prepared and made publicly available concerning the incorrect application by the appellate court of the Final and Transitional Provisions of Law No. 4888-IX in case No. 918/23/26. Our aim was not simply to express disagreement with an individual judgment, but to develop practical material that could be used by parties involved in similar court disputes.
– Energy Club submitted an appeal to the National Agency on Corruption Prevention proposing that a strategic analysis be conducted of corruption risks arising in the field of public procurement of energy resources as a result of years of legal uncertainty concerning mechanisms for changing prices under contracts.
– Energy Club prepared and submitted a number of appeals to Kyrylo Budanov, Head of the Office of the President of Ukraine and Head of the Council for Support of Entrepreneurship under the President of Ukraine, concerning consideration by the Council of the possible consequences of deleting paragraph 7 of Law No. 4888-IX. Appeals were also submitted to Vasyl Danyliak, Head of the relevant energy committee of the Council and Chief Executive Officer of JSC “Concern Galnaftogaz”, concerning the consolidation of positions of different segments of the energy business on legal certainty in the field of procurement of energy resources.
– For the first time in the modern history of public procurement, a JOINT APPEAL was prepared by representatives of the professional public procurement market.
For us, this has particular significance.
The tender support market, the expert community, representatives of contracting authorities, suppliers and professional organisations do not always share the same views on specific provisions or their practical application.
However, on this issue, it was possible to create a joint document concerning the need to involve the professional community in discussing the future of paragraph 7.
In our view, the very fact of such consolidation is already an important result: the issue has ceased to be a matter concerning an individual company, an individual supplier or an individual court dispute and has been formulated as a common problem of the public procurement system.
– Market representatives took part in a working meeting at the Commercial Cassation Court within the Supreme Court concerning the implementation and application of certain provisions of legislation in the field of public procurement.
Following the meeting, we expect the implementation of the proposal supported during the discussion to provide methodological guidance to appellate and local commercial courts on the specific features of applying paragraphs 2 and 7 of part five of Article 41 of the Law of Ukraine “On Public Procurement”, primarily concerning the need to distinguish formula-based pricing from price changes resulting from market fluctuations.
– On 11 September 2026, representatives of the energy market and the professional public procurement market took part in a working meeting at the Ministry of Economy dedicated to the appeals and proposals received by the Ministry.
In our view, this meeting marked an important transition from a general public discussion to a substantive consideration of the mechanism.
Our working conclusion following the meeting consists of at least three points.
First, the Authorised Body is authorised to “delete paragraph 7” without any alternatives, and any proposals from market representatives or the professional procurement community are not accepted for consideration.
Second, in the explanatory note, the Authorised Body states that the draft law “will have no impact on the market environment” or on the protection of the rights and interests of business entities. At the same time, in its Regulatory Impact Analysis, the Ministry of Economy identifies 38,105 business entities potentially covered by the regulation, describes legal risks and disputes, a reduction in predictability, and even explicitly states that legal uncertainty discourages participants and undermines competition. How can both statements be correct at the same time?
Furthermore, in accordance with its assigned responsibilities, the Ministry of Economy has effectively failed to analyse the functioning of the public procurement system, including quantitative and monetary indicators of public procurement by type of procurement procedure for energy resources and the level of competition.
Third, if paragraph 7 is deleted, the Authorised Body does not examine the issue of regulating legal relations that existed during the period when it was in force, while the issue of the consistency and predictability of state policy in the field of public procurement has been left out of consideration.
– Broad information efforts were initiated to inform contracting authorities and public procurement participants about the opportunity to participate in the public discussion. The relevant materials and publications were disseminated through “Public Procurement Advisor”, professional groups, social media, open communities and media outlets.
– A separate series of materials was prepared and published concerning the situation in the procurement of energy resources and the possible consequences of different options for further regulation.
We deliberately presented this material in three different formats:
– Market representatives, the leadership of the NGO “Energy Union” and Energy Club held a series of communications with the heads and deputy heads of parliamentary committees concerning the possible further consideration of the draft law.
During these consultations, alternative transitional regulatory mechanisms were presented, including mechanisms already known to Ukrainian legislation for the temporal application of favourable provisions, as well as the need to simultaneously ensure constitutionality, legal certainty and predictability of state policy.
WHERE WE ARE TODAY
According to the figures recorded by us on the public discussion page: 149 supported the draft law; 1,117 did not support it. These figures are not a public opinion poll and cannot automatically be regarded as representing the position of the entire market. But another conclusion is important to us.
Despite the amount of work carried out over the month and the number of individuals and organisations that used the public discussion mechanism, the draft law has proceeded to the next stage of governmental/legislative consideration, namely its submission to the Verkhovna Rada of Ukraine (https://materialy.kmu.gov.ua/05c69720/e8f10ceb.html).
And this is perhaps the main conclusion of recent days: the fate of thousands of procurement professionals and contracting authority managers, as well as the degradation of an entire sector of public procurement of energy resources, is not considered an issue of state importance under the conditions of a prolonged war.
WHAT IS BEING PREPARED NEXT
Energy Club is currently preparing an appeal to the Ministry of Justice of Ukraine concerning the consistency of the state’s position on the retroactive application of legislation and the relationship between the current paragraph 7 and the state’s general approaches to the temporal application of favourable provisions.
At the same time, the preparation of practical material on a defence strategy in court cases brought by prosecutors is being completed. It is based on accumulated judicial practice and arguments concerning the 10% threshold, formula-based pricing, proving actual market fluctuations and the application of Law No. 4888-IX.
According to our preliminary assessment, the approach developed has significant systemic potential for use in the relevant categories of disputes.
A separate document is also being prepared for market participants concerning communication with Members of Parliament of Ukraine, the leadership of parliamentary factions and groups, and relevant parliamentary committees.
Its purpose should not be to impose a ready-made political answer, but to ensure that, during parliamentary consideration, MPs receive from the professional procurement community and the energy market the most comprehensive possible information: alternative wording, legal justification, court practice, an assessment of the consequences for the market, and the questions that future regulation must answer unambiguously.
Only cohesion and the true superpower of our nation – the ability, at a critical moment, to put private interests aside, unite around a common problem, listen to one another, argue on the basis of evidence, but act together – will enable us not to remain passive observers of yet another change in the rules, but to become full-fledged participants in shaping them.
It is precisely such consolidation of the professional community, energy businesses, contracting authorities, lawyers, experts and civil society that can help the state answer the key question: what rule will govern the assessment of legal relations from previous years, and will it contain the necessary balance of fairness, stability and predictability for all participants in the public procurement system?
And it is precisely now that the professional community still has an opportunity to help make this answer better.
