Public tendering rules
Affected by Brexit?
Public contracts are awarded by users of public funds and entities operating in specific, non-competitive conditions (for example energy, water, public transport, postal services), for the purchase of services, supplies or civil engineering works.
Usually, all medium and higher value contracts must be awarded through competitive procedures (tenders), although there are exclusions and exceptions, such as:
- purchasing real estate
- cases of extreme urgency
- situations where there is only one possible supplier
Types of public tendering procedures
The standard way of awarding contracts is through competitive tendering. Within competitive tendering there are different types of public procurement procedures.
In an open procedure anyone may submit a full tender. This procedure is used most frequently.
Anyone may ask to participate in a restricted procedure, but only those who are pre-selected may submit tenders.
Competitive negotiated procedure
In competitive negotiated procedures anyone may ask to participate, but only those who are pre-selected will be invited to submit initial tenders and to negotiate.
Procuring entities can only use this procedure when negotiations are necessary due to the specific or complicated nature of the purchase however, the procuring entities in the defence and security, water, energy, transport and postal services sectors may use it as a standard procedure.
This procedure can be used by a contracting authority with the aim of proposing a method of addressing a need defined by the contracting authority.
This procedure may be used when there is a need to purchase a good or service that is still unavailable on the market. A number of companies may participate throughout the process.
This procedure is used to obtain an idea for a design.
Additional tendering techniques
Depending on the circumstances and needs a contracting authority may:
- sign a framework agreement with one or a number of companies for tenders requiring recurring purchases
- when using the restricted procedure - authorise the use of the electronic dynamic purchasing system for making recurring purchases
- decide that to get the best offer, the final choice of the winner will be made through an electronic auction
When and how EU rules apply?
All public procurement procedures in the EU are carried out on the basis of national rules. For higher value contracts, these rules are based on general EU public procurement rules.
The value limits (thresholds) that mark when EU rules are used depend on the subject of the purchase, and who is making the purchase. These thresholds are revised regularly and the amounts adjusted slightly (next revision is due in 2020).
The main limits are:
- EUR 139 000 for most types of services and supplies purchased by central government authorities
- EUR 5 350 000 for construction contracts
You can check the detailed public procurement thresholds or verify the limits directly with your national rules.
For lower value tenders, only national public procurement rules apply but the general EU principals of transparency and equal treatment should be respected.
Competing for a public tender – your rights
If your company, organisation or institution is established in the EU (In this case, the 28 EU member states + Iceland, Norway and Liechtenstein.), you have the right to compete for a public tender in any EU country. You have the right to:
- compete for a public tender in another EU country without discrimination
- use supporting documents (certificates, diplomas, etc.) issued by your country
- have equal access to all information regarding tenders, regardless of the EU country in which you are established
- have access to the review procedures in the respective country
When you can be excluded
You may not be allowed to participate in a procedure if you or your company cannot be trusted, for example the tenderer:
- will be excluded if they do not pay their taxes or social security contributions, participate in corruption or a have links to a criminal organisation
- may be excluded if they are bankrupt, or guilty of grave professional misconduct
You can find the detailed description of the reasons for exclusion in the Directives in the EU legislation section (links at the bottom of the page), your national public procurement law and in the documents provided by the purchasing entity.
When a public tender should be published on TED
As a general rule, tenders for public contracts that fall under EU rules must be published in the online version of Supplement to the Official Journal of the European Union - the Tenders Electronic Daily (TED) portal. Public authorities may also choose to publish notices on the TED portal when a contract is of lower value. In TED the basic information for tenders is available in all official EU languages.
Prior information notice for upcoming tenders
A procuring entity may also publish the prior information notice (PIN) on the Tenders Electronic Daily (TED) portal. The aim of the PIN is to provide you with information in advance about future procurement.
Normally the PIN is published between 35 days to 12 months prior to the publication of the contract notice.
When a tender is published following a prior information notice, the time limit to submit tenders can be reduced.
Tenders are evaluated by awarding points based on pre-published criteria, with each category worth a certain amount; for example the price offered may be worth 40%, technical characteristics 50% and environmental impact 10%.
The evaluation of tenders may only begin after the deadline for submission has expired.
Awarding the contract
You should be informed as soon as possible as to whether you have won the contract or not. If you have not been selected, you are entitled to an explanation of why your tender was rejected.
If you feel that you have been discriminated against, or noticed irregularities in the procedure, you can request a review of the procedure or file a complaint.
If you have been awarded a public contract or concession contract, you have the right to send electronic invoices – that comply with the European Standard for eInvoicing – to the public authority that awarded the contract.
All centralised national administrations in the EU are obliged to accept your invoices. In certain countries, the public authorities at the sub-central level will also have accept electronic invoices by April 2020. Check the situation in your country.