I Can’t, No Need, Too Scary: Why Non-Price Criteria Are Hardly Used in Prozorro

Don’t believe people who claim that price decides everything on Prozorro. That’s a manipulative line used only by those who have never opened tender documentation. Every tender sets out quality requirements in detail: technical specifications for what is being procured, requirements for the contractor’s experience, staff qualifications, necessary certificates, and so on. Sometimes the requirements are too detailed. If price truly decided everything in Prozorro, we would never see procurements of luxury cars for public officials or major overpayments in construction projects. 

Still, beyond technical requirements there is another quality-control tool: non-price criteria. This tool allows a contracting authority, instead of stating outright “I want this,” to set a framework where it is willing to pay slightly more for additional advantages. For example: a longer warranty period, faster delivery, better environmental performance, and so on. It is more complex, but it enables a more comprehensive and creative approach to procurement. Under the current Law, non-price criteria may account for no more than 30% of the bid evaluation weight, meaning the contracting authority can “overpay” for these additional advantages by at most 30%.

This tool has been available in Ukraine for a long time. Yet contracting authorities use it reluctantly. For example, last year they applied non-price criteria in less than 0.26% of procurements where they could have done so. In the EU, by contrast, non-price criteria are far more common: in 2025, tenders using them accounted for 57.5% of procurement procedures. The EU, however, does not impose limits on the share of non-price criteria. 

Within the framework of European integration, Ukraine is expected to change the rules accordingly and expand the use of non-price criteria. The topic has become so prominent in the procurement community that the public procurement department calls it a flagship direction. That is exactly why we decided to discuss it during the panel at Prozorro.Awards—an annual event that highlights best practices in public procurement. 

How it works in the EU

Since wider use of non-price criteria is a European approach, it makes sense to first understand how it works there. At the panel, we heard about this from Oleksandr Shatkovskyi, an expert with the EU4PFM project.

In general, European directives describe a broader approach. They are designed to set a framework that is then further regulated at the level of national legislation. 

The directive states, rather indirectly, that price may be the only criterion. Any criteria other than price must necessarily relate to the procurement item. At the same time, there are no limits on how the weights of evaluation criteria may be distributed. 

This might create the impression that in Europe procurements based solely on price are almost never conducted and that different evaluation criteria are always used. In reality, however, price-only procurements still make up the majority, on average, around 60%. The picture also varies widely from country to country. In Croatia, the figure is 95%, while in Slovakia and Cyprus it is below 10%.

By the way, Croatia’s high share of procurements using non-price criteria is explained by the fact that it introduced a legal cap on the weight of price: for certain procedures, price may not exceed 90%. The directive allows for such a restriction to be set at national level—and Croatia is so far the only country to have used this option.

Non-price criteria are a complex tool

During the discussion, Tetiana Mishta, Deputy Director of the Public Procurement Policy Department at the Ministry of Economy, made a spot-on point: 90% of Ukraine’s contracting authorities are small. Their authorized procurement officers (the people who run procurement procedures) usually combine these duties with their primary job, for example, working as an accountant. So, they simply do not have much time or capacity for “creative” approaches.

And non-price criteria are, in fact, a fairly creative and complex tool. First, you need to derive a formula for how you will evaluate bids across different criteria—in other words, you have to invent an algebra problem. You can find examples here. 

That is why most contracting authorities avoid non-price criteria: they do not really know how to use them and are not eager to figure it out. There is neither the time nor the resources. And most importantly, there is no real need.

Non-price criteria are most effective for evaluating bids in complex procurements, where nuances can matter a great deal and where it is difficult to set a single, clear-cut requirement from the outset. Not every contracting authority runs such procurements. They are most likely among the 10% of large buyers. Yet in Ukraine, the use of non-price criteria is not just below 10%—it is not even 1%. Why?

A requirement vs. a non-price criterion

Yurii Lytvynenko works with procurements at the Gas Transmission System Operator of Ukraine. During the discussion, speaking as a representative of a large contracting authority, he noted that they do have a need for, and plan to apply, non-price criteria related to environmental performance. They are currently studying European practice in order to do it properly. 

Lesia Kolesan, Director of the Procurement Department at the National Bank of Ukraine, spoke about a similar orientation toward environmental criteria. Her organization received an award at Prozorro Awards for using non-price criteria. They wanted to find a contractor capable of providing services without disruption, so they applied a non-price criterion related to the enterprise’s criticality. However, in that specific case the non-price criterion did not determine the outcome—the price advantage of the lowest bid ultimately prevailed. 

Yurii also explained that GTS Operator doesn’t rely on non-price criteria because they simply do not need them. For example, one relatively common non-price criterion in Ukraine is payment terms. But at the GTS Operator, payment terms are fixed—always up to 30 days. Delivery terms are also always set by schedule: they do not need faster delivery; they need delivery on time.

This, again, illustrates the difference in general approaches between Ukraine and the EU. European procurement tends to favor flexibility and openness, while Ukraine’s tends to favor clarity and predictability. There is no universally accepted line separating what should be treated as a non-price criterion and what should be a mandatory requirement. As a result, there is a high probability that where European contracting authorities might be willing to consider different options and evaluate a parameter as a non-price criterion, Ukrainian contracting authorities will instead specify exactly what they want upfront—and write it into the tender as a requirement.

Creativity vs. oversight

Beyond the lack of skills and the lack of need to use non-price criteria, we also raised a very simple factor during the discussion: fear. Fear that auditors, during monitoring, will treat the use of non-price criteria as a violation or that a company will file a complaint with the Antimonopoly Committee of Ukraine and the Committee will rule that your non-price criterion is discriminatory.

Oleksii Aleksandrov, Director of the Procurement Monitoring and Inspections Department at the State Audit Service, reassured contracting authorities about his institution’s approach. He explained that for auditors the key requirements are that non-price criteria must relate directly to the procurement item and must not contradict the law. In general, that means contracting authorities should not be afraid of auditors when using non-price criteria. Even if auditors initiate monitoring, the contracting authority simply needs to be prepared to explain why it applied that criterion. 

With the AMCU, however, things are not so rosy. This is primarily due to legal nuance. Most of the procurement community considers the list of non-price criteria in the current Law on Public Procurement to be non-exhaustive. The AMCU, by contrast, believes that only the criteria explicitly listed in the Law should be used. 

Yevhen Kostenko, Deputy Director of the Department handling appeals in the field of public procurement, noted that the AMCU generally believes non-price criteria should be used with great caution. He explained that 99% of the AMCU’s decisions on complaints about non-price criteria were in favor of businesses rather than contracting authorities, because complainants demonstrated that the criteria were discriminatory. 

So, the AMCU’s stance on non-price criteria is considerably stricter. 

Those who still try

Despite the risk of running into the AMCU, some contracting authorities still try to use this instrument. Overall, Prozorro recorded 927 procurements in 2025 marked as having non-price criteria. 

This year, Prozorro Awards wanted to introduce a nomination dedicated to non-price criteria. To do that, together with CEP KSE and Prozorro SE, we manually reviewed a sample of procurements where this tool had been used. But we could not identify a single case as an example worth following. 

Some contracting authorities use non-price criteria quite actively. Yet we still could not treat it as good practice. For example, one authority regularly used a non-price criterion that extended the payment period to 180 days. But in the contract, immediately after that clause, it stated that payment could also be made sooner. This looks very much like a convenient way to push through a “preferred” winner while scaring off everyone else—a kind of a “barrier” at the entrance. A recent scandal around this kind of scheme highlighted that it can be an effective mechanism for pressuring a contractor into paying kickbacks. And we do not want non-price criteria to spread only for them to become a tool for bad practices. 

How to promote sound non-price criteria

To me, this looks a bit like children learning, say, to ride a bike. Right now, we are in a situation where the children have simply been handed bicycles and told: here you go—ride them within the 30% limit. Some do not even go near them because they are afraid; some try at random and do not get very far; some watch the neighbors ride and try to imitate them. And of course, a few kids will figure out how to use bicycles to cause trouble. 

To fully comply with the European directive, Ukraine needs to “let go” of the weight of non-price criteria—that is, stop capping them at 30%, as we do now. But in a context where almost no one knows how to use this tool, removing the cap may either change nothing or turn into chaos, because it creates much more room for manipulation.

To harmonize Ukrainian legislation with European directives, the draft of a new Law on Public Procurement is currently being refined ahead of its second reading. The DOZORRO TI Ukraine team proposed that it should provide for a gradual transition to non-price criteria without any cap. Also, it proposed that the Ministry of Economy should develop a methodology for using non-price criteria that clearly explains how contracting authorities can apply this tool properly. Mandatory application of this methodology should be enshrined in the new Law. And the same Law should also revise the wording on the list of non-price criteria so that neither the AMCU nor anyone else treats it as exhaustive.

Such regulation would give us time and a more controlled environment for learning. But it is important to understand that genuine progress requires initiative from all participants in the process. The authorities, in broad terms, need to explain how this “bike” can be useful; contracting authorities need to find the courage to try; and oversight should not scare people away—it should guide them. 

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.