Rules & procedures
Each year, more than 250,000 public authorities in the EU spend around 18% of GDP on purchasing services, works or supplies. As a business registered in the EU, you have the right to compete for public contracts in other EU countries.
To create a level playing field for all businesses across Europe, the EU law sets minimum harmonised rules (see directives on public procurement). These rules, transposed into national legislation, apply to the tenders whose monetary value exceeds a certain amount (see thresholds below). These ‘above threshold' tenders are, presumably, of cross-border interest; in other words - the tender value makes it worth-while for a business to submit a tender abroad.
For tenders of lower value, national rules apply (which nevertheless have to respect general principles of EU law). The ‘below threshold' procedures may be simplified compared to the EU-wide tenders.
For all tenders, public authorities:
- may not discriminate against a business because it is registered in another EU country
- may not refer to specific brands, trademarks or patents when describing the characteristics of products & services they wish to purchase
- may not refuse to accept supporting documents (certificates, diplomas, etc.) issued by another EU country, as long as they provide the same level of guarantee
- must make all information regarding tenders available to all interested companies, regardless of what EU country they are registered in.
A public authority has the right to exclude your business from a call for tenders if it:
- is bankrupt or being wound up
- has suspended its activities or its activities are administered by a court
- has been found guilty of grave misconduct
- has not paid taxes or social security contributions
- has made false declarations to a public authority.
Only in specific cases public authorities may award contracts without publishing a call for tenders:
- emergencies due to unforeseeable events
- contracts that - for technical reasons or because of exclusive rights - can be carried out by one particular company only
- contracts that by law are excluded from public procurement (acquisition/rental of existing buildings, employment contracts, programme material for broadcasting, etc.).
Thresholds triggering EU‑wide rules
Central government authorities
≥ EUR 134 000
supplies contracts (for defence only those listed in Annex III of Directive 2014/24)
≥ EUR 207 000
supplies contracts for defence products not listed in Annex III of Directive 2014/24
≥ EUR 5 186 000
all works contracts
Other public authorities
≥ EUR 207 000
all supplies and services contracts
≥ EUR 5 186 000
all works contracts
For public service providers in the fields of water, energy, transport and postal services, the threshold for supplies and service contracts is EUR 414 000. For works contracts, the threshold is EUR 5 186 000.
Public procurement rules
Public authorities may use different criteria when evaluating tenders - for example they may select according to the lowest price offered or they may use other criteria. In the latter case, each applicant should be informed of the different weighting given to the different criteria (for example price, technical characteristics and environmental aspects).
Certain notices must be published for any public tender exceeding the thresholds and for which EU-wide rules exist:
- contract notice or notice of a design contest: the public authority may publish this notice nationally but should also send it to the EU Publications Office. The notice is published in full in one official language of the EU and a summary is translated into other languages
- notice of the contract award announcing the results of the public tender.
Public authorities may choose to publish other information notices, such as the prior information notice (announcing a possible upcoming tender). When a tender is eventually published following a prior information notice, the time limit to submit and receive tenders can be reduced. Another way of reducing the time limit is to publish the tender electronically.
A list of notices can be found in the buyers' corner on SIMAP, the European portal for public procurement.
Public authorities may only begin evaluating tenders after the deadline for submission has expired. If you have submitted a tender, you have the right to be informed as soon as possible whether or not you have won the contract. If you have not been selected, you are entitled to a detailed explanation of why your tender was rejected. The public authority must observe strict confidentiality regarding the exchange and storage of your data.
Technical specifications define the characteristics of the service, supply or works that the public authority intends to buy. They may include aspects of environmental performance, design, safety, quality assurance or conformity assessment. For public works contracts they may also include tests, inspection and construction techniques. Technical specifications should not require the use of a specific brand, trade mark or patent.
Types of public procurement procedure
In an open procedure any business may submit a tender. The minimum time limit for submission of tenders is 52 days from the publication date of the contract notice. If a prior information notice was published, this time limit can be reduced to 36 days.
In a restricted procedure any business may ask to participate but only those who are pre-selected will be invited to submit a tender. The time limit to request participation is 37 days from the publication of the contract notice. The public authority then selects at least 5 candidates possessing the capabilities required, who then have 40 days to submit a tender from the date when the invitation was sent. This time limit can be reduced to 36 days, if a prior information notice has been published.
In urgent cases the public authority may set a time limit of 15 days to receive participation requests (if the notice is sent electronically, this can be reduced to 10 days) and 10 days for the submission of the tenders.
In a negotiated procedure the public authority invites at least 3 businesses with whom it will negotiate the terms of the contract.
Most contracting authorities can use this procedure only in a limited number of cases, for example for supplies intended exclusively for research or testing purposes. The contracting authorities in sectors such as water, energy, transport or postal services may use it as a standard procedure.
The time limit to receive requests to participate is 37 days from the publication of the contract notice. In extremely urgent cases this can be reduced to 15 days (or 10 days if the notice is sent electronically).
Under certain conditions this procedure can be chosen even without publication of a contract notice, for example in case no tenders were submitted in an open or restricted procedure, in extremely urgent cases or in cases where, for technical reasons, the contract can be carried out only by a single business.
This procedure is often used for complex contracts such as large infrastructure projects where the public authority cannot define the technical specifications at the outset. After the publication of the contract notice, interested businesses have 37 days to request participation. The public authority must invite at least 3 candidates to a dialogue in which the final technical, legal and economic aspects are defined. After the dialogue the candidates submit their final tenders.
Competitive dialogue cannot be used by public services providers in the water, energy, transport and postal services sectors.
Public authorities can also award contracts by electronic auction. Before starting the auction, the authority must make a full initial evaluation of the tenders and allow only the admissible ones to take part. The invitation to participate in the auction must state the date and time of the auction and the number of bidding rounds. It should also set out the mathematical formula that will determine the automatic rankings. In each bidding round you must be able to see your ranking compared to your competitors, without knowing their identity.
Electronic auctions cannot be used for certain types of contract - such as the design of works (for example architectural plans for a building).