Not a bad cop, but a partner: how civil society helps the state with EU integration of public procurement

We, public experts and journalists, are often perceived as bad cops, especially in procurement. We expose overpayments and other tender violations, first approaching procuring entities, and when they don’t respond, we escalate the issue to the State Audit Service or law enforcement or even report it in the media. For some reason, this part of our job tends to shape public perception of our mission. We also highlight systemic problems and push back against populist decisions made by the authorities.

Interestingly, few remember that some of Ukraine’s coolest reforms have resulted from collaboration between civil society and the state. Prozorro and public procurement reform in general, like many others, were grassroots initiatives driven by civic actors and businesses. Yes, the state supported them—but only after that did, they evolve into one of the best public e-procurement systems in the world.

Civil society can be a valuable partner for the state. It can take on tasks that governmental institutions often lack the capacity or expertise to address, propose innovative solutions, and facilitate cooperation with other stakeholders, including international partners. At Transparency International Ukraine, we strive to be exactly that kind of partner, especially on issues related to European integration. In particular, in matters related to European integration.

Any new law is a joint effort

Over the past year, one of our team’s key priorities has been to improve Draft Law No. 11520, “On Public Procurement.” This is the legislative framework intended to align Ukraine’s procurement rules with European standards. After its adoption at first reading, the public, including TI Ukraine, was actively involved in refining the draft.

Public procurement reform is part of the first negotiation cluster: the Fundamentals of the EU accession process. In other words, harmonizing legislation in this area is a top priority if Ukraine wants to join the EU. And it’s no small task. Despite major progress in aligning Ukraine’s procurement system with European standards during the 2015–2016 reform period, Ukrainian regulations still diverge significantly from EU norms.

However, beyond providing purely technical support for adapting EU standards, one of our main goals is to ensure that the new law functions effectively in Ukraine’s real-life context—and that it genuinely improves the efficiency of public procurement.

EU integration, but not for its own sake

Even as we move toward the EU, it’s important to remember that European integration must not become an end in itself. First and foremost, it is a path of development—one on which we must be careful not to lose the achievements where we may already be ahead of Europe. For example, in some EU countries, procurement processes still rely on paper-based communication between procuring entities and suppliers. Meanwhile, our system is fully digitalized, and a literal implementation of this aspect of EU procurement practice would actually be a step backward for us.

Overall, when adapting our regulations to EU directives, it is crucial to take the local context into account. EU rules allow for the unlimited use of non-price criteria—letting procuring entities select proposals based on factors other than price, such as delivery time, warranty, or energy efficiency. Ukrainian rules also allow non-price criteria, but they are currently limited to 30% of the assessment score. Even within that limit, according to the research, most procuring entities in Ukraine barely use that instrument, mainly due to lack of capacity or understanding. So, adopting the EU standard wholesale wouldn’t improve things significantly. On the contrary, it could open a new loophole for corruption, allowing a tender to be awarded to a “preferred” bidder by assigning 90% to a non-price criterion.

Another controversial requirement is the optional use of auctions. In the EU, contracting authorities are not obliged to conduct auctions; they can choose whether to use them. But Ukraine has already tested this approach during the largest power outages. According to our estimates, removing auctions for just three months potentially cost the budget around one billion hryvnias in lost savings. That’s why we advocate keeping mandatory three-round auctions, while allowing limited exceptions for genuinely specific procurement transactions.

Sharing our experience

Ukraine is unique in that, thanks to our high level of digitalization, we can actually measure how changes to procurement rules affect efficiency. This makes us valuable to the EU—our system allows for real-time testing of what works and what doesn’t, enabling evidence-based refinement of the rules.

In fact, Ukraine has gone further than Europe in many areas. So, in addition to adopting the best European practices, we can also recommend ways for the EU to improve its own rules. For example, we submitted such recommendations during the public consultations on updating EU procurement directives. Interestingly, even though we, KSE, and the Ministry of Economy submitted our proposals separately, they were closely aligned in substance. So, we are actively partnering with the state to promote Ukraine’s best practices.

At the same time, the civil sector maintains strong ties with international partners, and in many cases, our expertise is respected. Notably, the findings from our 2023 report on the state of public procurement in Ukraine were reflected in the European Commission’s 2024 Enlargement Report recommendations for Ukraine.

A chance to do better

When it comes to the new law, we try to see it not just as an exercise in aligning our rules with those of the EU—but above all, as an opportunity to make our public procurement system more effective.

That’s why we analyze the weaknesses of the current system to strengthen it. A significant share of non-defense procurement spending now goes toward reconstruction, so we pay particular attention to construction-related procurement. Many of our recommendations for the new law focus specifically on this area.

For example, we advocate for publishing the documents required for cost estimates in machine-readable formats, as well as for disclosing work acceptance certificates. The former would make it easier for businesses to participate in tenders. Our research shows that these documents are often uploaded as scanned PDFs, and with tight deadlines, businesses don’t have enough time to prepare proper estimates. Thanks to another of our studies, those deadlines have already been extended. The certificates, in turn, are needed to show the real prices on construction projects, which often differ from those listed in contracts.

A comprehensive approach

Incidentally, we’ve identified many of these problems through systematic monitoring of construction procurement, during which we detect overpayments—a classic “bad cop” move.

On the other hand, another key focus of our work is in-depth sectoral research, which the government often lacks the resources to conduct. We frequently carry out such studies in response to specific inquiries. A recent example is our joint research with KSE on IT procurement, conducted at the request of the Ministry of Digital Transformation. The goal was to determine whether Ukraine needs an alternative system for IT procurement (spoiler: we don’t) and to identify areas that still require improvement.

In parallel, we support and develop analytical tools—including the public and professional BI Prozorro modules. These tools help us and government stakeholders assess how procurement rules work in practice and make data-driven decisions. We’re also working to strengthen the institutional capacity and effectiveness of the State Audit Service, the sector’s main oversight body. Again, this is about partnership and collaboration.

Internally, we half-joke that our goal is to make ourselves obsolete—to help build a public procurement system so transparent and functional that our watchdog role is no longer needed. Until that happens, there’s still much to do. And that work is about helping the state become stronger, especially on the path to European integration.

This material is funded by the European Union. Its content is the sole responsibility of Transparency International Ukraine and does not necessarily reflect the views of the European Union.