The New Public Procurement Law: What Changes for Suppliers in Disputes with Prosecutors

Disputes with prosecutors regarding the invalidity of supplementary agreements to adjust prices have remained one of the most acute and problematic legal issues in the electricity supply sector for several years.

Thousands of lawsuits, two reviews by the Grand Chamber of the Supreme Court, and millions in claims have created an environment of uncertainty for suppliers, where signing a routine supplementary agreement to increase prices in line with market realities and contract terms has become an action with a predictably negative judicial outcome.

On May 27, 2026, the Verkhovna Rada adopted Law No. 4888-IX "On Public Procurement," which, among other things, introduced significant amendments to the current Law No. 922-VIII "On Public Procurement."

But is the new law capable of fixing the errors of the current one, or is it merely a partial legislative response to a situation that has nearly spiraled out of control? Unfortunately, as is traditional for our legislators, the answer is not obvious.

We should note immediately that this article is not intended as a comprehensive review of the new Law. We will focus exclusively on those changes that have practical significance for suppliers involved in disputes over price adjustment supplementary agreements.

Entry into force and implementation of the new Law

Law No. 4888-IX itself enters into force on the day following its publication. However, the full implementation of its main text is scheduled for nine months after it enters into force—tentatively in the spring of 2027 (depending on when the Law is signed by the President and published).

Thus, until that time, the current Law No. 922-VIII remains the basis for regulation.

However, simultaneously with the adoption of the new Law, Parliament introduced amendments to the current Law No. 922-VIII.

Crucially, the key change—the new wording of Clause 2, Part 5, Article 41 of Law No. 922-VIII—applies retrospectively to legal relations that have arisen since 2016, i.e., from the moment Law No. 922-VIII itself became operational.

This means that the updated provision also extends to contracts that were concluded and executed in previous years.

Amendments to Clause 2, Part 5, Article 41 of Law No. 922-VIII

The current wording of Clause 2, Part 5, Article 41 of Law No. 922-VIII allows for a price increase per unit of goods of up to 10 percent in the event of market fluctuations. For years, the provision itself was interpreted as allowing for multiple increases—each within 10% of the previous price.

However, the Grand Chamber of the Supreme Court, in its rulings dated January 24, 2024 (case No. 922/2321/22) and November 21, 2025 (case No. 920/19/24), interpreted this provision differently: 10% is the total cumulative limit based on the initial contract price, regardless of the number of supplementary agreements concluded.

However, in the new Law, the legislator, clearly recognizing that the previous wording of the provision was ambiguous and did not meet the criteria of a "quality law," decided to amend it.

The updated wording of Clause 2 contains a phrase that leaves no room for ambiguity:

"The limitation on increasing the price per unit of goods by no more than 10 percent applies to each individual instance of a price increase per unit of goods (without limiting the number of changes)."

Interestingly, unlike the current version of the Special Procedures, the amended Law does not contain a provision regarding a 50% cumulative limit.

The expected question arises: will prosecutors and courts continue to insist in this case that the provisions of the Special Features do not apply, just as they do now when suppliers refer to the version of the Special Features without any 10% limit? We will see the answer in due course.

Thus, the new Law proposes an approach where 10% is the limit for price changes per adjustment, rather than in the aggregate. And, as we noted above, this updated rule applies retrospectively to legal relations from 2016, which provides an additional argument against the claims currently being considered in court.

Parliament has effectively done two things at once: it has resolved a long-standing ambiguity in the rule and formally highlighted the flawed position of the Grand Chamber, which, in our view, was fundamentally incorrect. We have already drawn attention to this position in our previous article, "Changing Prices in Electricity Supply Contracts: The Supreme Court Has Had the Final Say". Now, that final say—this time in favor of suppliers—has been delivered by the legislator themselves.

Are all the suppliers' problems solved?

Despite the positive reception of the aforementioned changes and the legislator's generally correct approach to resolving existing issues with the ambiguous rule, we remain cautiously optimistic about these changes, and here is why.

In effect, Parliament has removed only one of the key formal grounds for prosecutorial lawsuits, but it was far from the only one. There remain at least three arguments that prosecutors actively use, which the new Law, unfortunately, does not address.

First, the requirement to link price fluctuations to specific dates

In their lawsuits, prosecutors systematically demand that the Chamber of Commerce and Industry certificate, Day-Ahead Market data, or other documentary proof of price fluctuation must be dated exactly to the day the supplementary agreement was signed, compared to a specific date of a previous supplementary agreement or the original contract.

However, no provision of the Law has ever contained such requirements. Moreover, in the very logic of contractual relations, the date the need for a price change arises never coincides with the date the supplementary agreement is signed, as objectively, time is needed to coordinate the proposal, negotiate with the consumer, and obtain documents. Thus, it is necessary to compare the price from the moment the contract (or previous supplementary agreement) was signed to the moment the need for relevant changes, caused by such fluctuation, arose.

The Supreme Court explicitly pointed this out in its ruling of February 16, 2021, in case No. 910/6790/18, but prosecutors and courts continue to ignore this conclusion.

Second, Article 652 of the Civil Code of Ukraine as an additional burden of proof

In their lawsuits, prosecutors argue that even if a supplier has complied with the 10% limit and confirmed the fluctuation, they must additionally prove the existence of a material change in circumstances under Article 652 of the Civil Code of Ukraine—that is, justify that fulfilling the contract at the original price became loss-making for them, that they could not have foreseen such a turn of events, and so on.

This position is based on a misunderstanding of the Civil Code provisions and a flawed (selective) interpretation of the Grand Chamber's legal positions.

Indeed, Article 652 of the Civil Code is a general rule that applies only when the parties have not provided for a price-change mechanism in the contract itself. If the parties, exercising the principle of freedom of contract (Articles 6 and 627 of the Civil Code), have agreed upon such a mechanism, the change occurs in fulfillment of the contract terms, not through the mechanism of a material change in circumstances.

The Grand Chamber, in its rulings of January 24, 2024, in case No. 922/2321/22 (paragraphs 54, 89) and of November 21, 2025, in case No. 920/19/24 (paragraph 127), formulated an unambiguous conclusion:

"An increase in the price of goods before their transfer to the buyer's ownership under a procurement contract is possible in the event of an increase in the price of such goods on the market, if the parties to the contract have agreed on such a condition. If the parties to the contract have not agreed on such a condition, then an increase in the price of goods in the event of a rise in the market price of such goods is possible only if it has led to a material change in circumstances, in accordance with Article 652 of the Civil Code of Ukraine.", if they have changed to such an extent that, had the parties been able to foresee this, they would not have entered into the contract or would have done so on different terms”

Thus, the Grand Chamber clearly distinguished between two grounds for price adjustment: if a price adjustment mechanism is provided for in the contract, the provisions of the contract apply, not Article 652 of the Civil Code; if no such mechanism is provided, then (and only then) is it necessary to prove a material change of circumstances under Article 652 of the Civil Code to adjust the price.

Prosecutors, however, systematically cite only the conclusion regarding the necessity of applying Article 652 of the Civil Code in their lawsuits, while deliberately omitting the condition under which such an article is applicable. In essence, this is a flawed and manipulative use of the Supreme Court's legal position — and this is exactly what should be emphasized to the court in every proceeding.

However, the Supreme Court, sitting in chambers, disregards these arguments and counterarguments from suppliers, mechanically copying the prosecutor's flawed reasoning from one decision to the next without even attempting to grasp the essence of the issues surrounding the application of Article 652 of the Civil Code to these legal relations.

Third, the Special Features applicable during the martial law period

A separate problem is posed by cases involving contracts concluded in 2022 and early 2023, when versions of the Special Features (CMU Resolution No. 1178) were in effect that contained no percentage limit on price changes. In its ruling of November 21, 2025, in case No. 920/19/24, the Grand Chamber effectively confirmed that during martial law, the Special Features apply to contracts, rather than Part 5 of Article 41 of Law No. 922-VIII in isolation from subordinate legislation.

Nevertheless, courts and prosecutors systematically ignore the mandatory provision of Clause 17 of the Special Features, which explicitly excludes Part 5 of Article 41 of Law No. 922-VIII from application during martial law.

Law No. 4888-IX does not resolve this problem either.

Conclusions

The changes introduced by Law No. 4888-IX are undoubtedly a positive signal for electricity suppliers. Although with a significant delay, Parliament has corrected its mistakes by clarifying what the legislator originally intended in the previous version of the provision. This provides suppliers with a powerful new argument in current and future litigation.

At the same time, it would be premature to claim that the problems have been fully resolved. Prosecutors still have a whole arsenal of other arguments at their disposal — regarding the "link" between the date of confirmation of price fluctuations and the date of the supplementary agreement, and regarding the imposition of Article 652 of the Civil Code as an additional burden of proof for matters the supplier should not have to prove.

Overall, this is a new stage in the fight for adequate market pricing in public electricity procurement. It is a stage where suppliers finally have a legislative argument on their side, but one where consistent legal work will be required to ensure this argument is accepted in practice.

‍