The Project Presented Gap Analyses of the Ukrainian Public Procurement Law and EU Directives

The EU Project prepared updated Gap Analyses to present, in a straightforward manner, the differences/gaps between Ukrainian public procurement legislation and the EU Public Procurement Directives. The Document thus provides a detailed basis for further public procurement legislative reforms in Ukraine and highlights the various general and specific challenges to be tackled.

The previous gap analyses published in June 2014 was based on the Law on Public Procurement of 2014 and the separate legislation on utilities procurement. Since then, new developments have made it urgent to revise the gap analyses.First, a significant revision of the legislation took place with the adoption of a new Public Procurement Law which included the merging of the separate legislation on utilities procurement into one law. Secondly, this was followed up by the adoption of the Public Procurement Reform Strategy including the Road Map on public procurement approximation required by the EU-Ukraine Association Agreement in February 2016.

The updated gap analyses expose small and large differences between the recently amended Ukrainian legislation and the EU Public Procurement Directives and makes a number of recommendations as to how the results of the gap analyses should be included in the law approximation process according to the phases of the EU-Ukraine Association Agreement and the Government’s Public Procurement Reform Strategy/Road-Map (2016-2022) of February 2016. In particular, the analyses recommendations point to procurement procedures which require adjustment to further align them with the EU Public Procurement Directives and demonstrate the need to add entirely new procedures. In addition, there are a number of exemptions that do not comply with the Directives, especially as regards the utilities sector. Other important gaps include the need for alignment with the valuation rules and the rules on mixed contracts set out in the EU Public Procurement Directives. Moreover, a recurring theme in the analyses is the need for the Ukrainian legislation to adopt various new concepts and definitions, including, for example, the definition of “relevant utilities sector activities”. These concepts and definitions will, in many cases, pose challenges in practice. Accordingly, the recommendations of the analyses underline the need for the legislative reform to be followed up by institution and capacity building activities.