The tendering process for public procurement in the European Union
All the questions
The bidding process
Most procurement processes are officially launched by issuing a contract notice.
All official notices under the Directives – such as prior information notices, contract notices and contract award notices – must be submitted electronically for publication in the Official Journal of the European Union, accessible free of charge via Tenders Electronic Daily.47
The Directives provide for different procurement procedures:
- open procedure: a one-step process where bidders must prove their regularity and their bidding proposals in a single round of bidding;48
- restricted procedure: a two-step procedure in which – on the basis of financial standing, qualifications and past experience – at least five bidders are pre-selected to tender;49
- competitive dialogue procedure: process generally used for complex contracts where the authority only knows the result it requires and has not yet identified a solution;50
- competitive procedure with negotiation51 or negotiated procedure with publicity:52 a process typically used for contracts where the authority knows both the outcome and the likely solution but wishes to negotiate terms with bidders;
- innovation partnership for the development of innovative products;53 and
- exceptionally, negotiated procedure without publicity.54
For the procurement of social services and other specific services falling under the light regime, and where the Directive on concession contracts applies, no procedure is specified.
Minimum time limits are provided for the key stages of most procedures, in particular with regard to the minimum time between the contract notice and the first expressions of interest from tenderers. These deadlines can be shortened in certain specific cases and vary according to the procedure adopted and the applicable directive.55
iii Modification of offers
Once bids have been submitted, equal treatment and fairness severely limit the ability to modify bids.
The authorities may, in certain cases, request clarifications or allow bidders to correct obvious errors.56 However, in the case of tenders under open procedure or restricted procedure, or final tenders under competitive procedure with negotiation or negotiated procedure with advertising, the negotiation or the submission of what must be considered as a new tender are not not allowed.
The competitive dialogue procedure is a little more flexible: the authority can, before the evaluation of the tenders, ask that the tenders be clarified, specified and optimized. However, this must not involve changes to essential elements of the tender or the procedure which may distort competition or have a discriminatory effect.57 After the selection of the successful offer, negotiations are permitted to confirm certain aspects of the offer and finalize the terms of the contract, provided that the essential aspects are not substantially modified and, again, that it is not there is no risk of distortion or discrimination.58