19.05.2026
On May 11, Vitalii Bulat, Partner at FEDOTOV & PARTNERS, took part in the Energy Club discussion regarding problems in public electricity procurement.
In his speech, he focused on three problematic areas: the courts’ application of the provisions of the Law “On the Prosecutor’s Office,” which the Constitutional Court of Ukraine has already recognized as unconstitutional; the double standards of the prosecutor’s office, which concludes contracts with formula pricing itself while simultaneously challenging identical contracts of market participants; and the prosecutor’s transformation of procurement monitoring in Prozorro into a tool of general supervision — a function that the prosecutor’s office was stripped of back in 2016.
“The practice is not changing in favor of suppliers in any way. Unfortunately, this must be stated,” declared Vitalii Bulat.
According to him, courts continue to support the prosecutors’ position even in cases involving formula pricing, which is explicitly provided for by the current Peculiarities of public procurement.
The speaker paid separate attention to the Constitutional Court’s decision regarding Article 23 of the Law “On the Prosecutor’s Office.” The Court recognized as unconstitutional the provisions that allowed prosecutors to apply to the court due to “improper exercise” of powers by authorized bodies. At the same time, the invalidation of this norm was deferred until January 1, 2027.
According to Vitalii Bulat, this created a paradoxical situation where courts continue to apply a norm whose unconstitutionality has already been established.
“In fact, the Constitutional Court said that we are under martial law, so let’s continue to apply an unconstitutional norm,” the lawyer noted.
He emphasized that the validity of a norm and its constitutionality are different legal categories, and courts, in accordance with procedural legislation, have an obligation not to apply unconstitutional provisions.
However, as Vitalii Bulat stated, most courts continue to act formally, arguing that the norm remains valid for now.
The Partner at FEDOTOV & PARTNERS Law Firm also drew attention to the very mechanism behind the emergence of most prosecutorial lawsuits. According to him, in the vast majority of cases, they arise following the monitoring of procurement in the Prozorro system.
“When a prosecutor monitors something, they are effectively exercising the function of general supervision, which was abolished back in 2016,” highlighted Vitalii Bulat.
He also pointed out the contradictoriness of the situation where the prosecutorial bodies themselves conclude contracts with identical price modification mechanisms, but simultaneously challenge the exact same contracts of other market participants.
“When you conclude such contracts yourself, and in another instance challenge the very same contracts — this is nothing short of an abuse of right,” stated the lawyer.
Evaluating the current judicial practice, Vitalii Bulat suggested that it is partially shaped by the overload of courts, insufficient understanding of energy specifics, and the psychological factor of pressure from the prosecutor’s office.
“It seems to me that for the court, a presumption of the validity of the prosecutor’s lawsuit has already kicked in,” he said.
Summarizing his speech, Vitalii Bulat admitted that suppliers cannot entirely avoid risks under the current conditions. At the same time, he recommended that the market pay the utmost attention to drafting contract terms and utilize formula pricing mechanisms provided for by the Peculiarities.
According to the lawyer, clearly defined price modification mechanisms remain one of the few tools today that can at least partially protect suppliers in the face of unstable judicial practice and constant legal risks.
