Updates to Resolution of the Cabinet of Ministers of Ukraine No. 1178 “On Approval of the Specific Aspects of Public Procurement of Goods, Works and Services for the Procuring Entities under the Law of Ukraine ‘On Public Procurement’ for the Duration of the Legal Regime of Martial Law in Ukraine and for Ninety Days upon the Termination or Cancellation Thereof” dated 12 October 2022 came into force on 4 September 2025. The updates address, among other things, the grounds for amending the essential terms of procurement contracts. This article will provide answers to the three most frequently asked questions of authorised persons of municipal procuring entities regarding these changes.
Do the updated exceptional grounds for amending the essential terms of contracts apply to the contracts that had been executed before the amendments to the Aspects came into force?
The answer to this question will be given to us by the CMU Resolution No. 1067 dated 1 September 2025, introducing the latest amendments to the Aspects. According to this Resolution, procurement contracts executed under the procedure and on the terms established prior to the entry into force of this Resolution are to be performed in full until the expiry of the term for which the contracts were executed. Amendments to these contracts must be made under the procedure and on the terms established before the entry into force of the Resolution.
Thus, the exceptional grounds for amending procurement contracts executed before 4 September 2025 will remain as defined in Clause 19 of the Aspects on the date of the contracts until these contracts expire. No amendments to existing contracts are required.
Since Clause 19.2 of the Aspects provides for an exception for energy carriers, can the price of electricity be increased by more than 10% for a single amendment?
The answer is no. This is inconsistent with the legislation.
Indeed, there are certain exceptions for energy carriers, but not in terms of the 10% price change limit. The exception provided for energy carriers allows changes to be made to purchase contracts in terms of increasing the price per unit of goods more often than once every 90 days. According to Clause 19.2 of the Aspects, material terms and conditions of the procurement contract cannot be amended once it is signed, until the parties fulfil their obligations in full, except for the following:
“an increase in the price per unit of goods agreed by the parties by no more than 10 per cent in proportion to the fluctuation in the price of these goods on the market that has taken place since the date of the procurement contract (if the price per unit of goods is increased under this sub-clause for the first time) or since the date of the last amendment to the procurement contract to change the price (if the price per unit of goods is increased under this sub-clause for the second and subsequent times), provided that there is documentary evidence of this fluctuation. The procurement contract may be amended no earlier than 90 days after the date of the procurement contract or amendments thereto regarding an increase in the price per unit of goods, unless the changes lead to an increase in the price specified in the procurement contract. The restriction on the time limits for amending a procurement contract to raise the price per unit of goods does not apply if the terms of the contract for the procurement of petrol, diesel fuel, natural gas or electricity are changed. The restriction on increasing the price per unit of goods by no more than 10 per cent applies to each individual case of increasing the price per unit of goods (without restricting the number of changes). The adjusted price per unit of goods cannot exceed 50% of the price per unit of goods stipulated in the initial procurement contract.”
Thus, three restrictions have been imposed on increasing the price per unit of goods:
- Up to 10% at a time in proportion to the fluctuation of the price of the goods on the market.
- No more than once every 90 calendar days. The exception is the purchase of petrol, diesel fuel, natural gas and electricity, where the price per unit may be increased without any time restrictions.
- The price of the goods after all changes cannot exceed the initial price of the executed contract by more than 50%.
Do the restrictions on amending the essential terms of contracts in accordance with Clause 19 of the Aspects apply to contracts executed outside the electronic system?
Clause 19 of the Aspects stipulates that “Essential terms of the procurement contract concluded in accordance with Clauses 10 and 13 (except for Clauses 13.13 and 13.15 of these Aspects, except for the procurement contract specified in para. 2 and 3 of Article 41(1) of the Law) of these Aspects shall not be amended upon its signing until the obligations are fulfilled by the parties in full, except for cases”, and lists the cases when these changes are permitted.
In this case, restrictions on amending the essential terms of contracts are established only for contracts executed under Clauses 10 and 13 of the Aspects. These are procurement contracts executed following open tenders, calls for proposals from suppliers through Prozorro Market, as well as under the exceptions specified in Clause 13 of the Aspects.
Therefore, if the procuring entity has entered into a procurement contract outside the electronic procurement system or in accordance with Clauses 13.13 and 13.15 of the Aspects (procurement of goods, works and services for the repair and protection of critical infrastructure of the fuel and energy sector), essential terms of these contracts may be amended in accordance with the effective laws without applying the restrictions set forth in Clause 19 of the Aspects.
