Understanding your rights in public procurement
In collaboration with MAQS Law firm
Public procurement can be a complex landscape for suppliers. Companies often invest significant time and resources into preparing bids, yet when a contract is awarded it can sometimes be difficult to understand what rights you actually have if something appears to have gone wrong.
At the same time, one important fact is often overlooked: the legal framework behind public procurement is fundamentally designed to protect suppliers.
According to procurement lawyers, the European procurement directives are built on the principle that suppliers must have the opportunity to challenge procurement procedures that have not been conducted correctly.
In many ways the procurement rules are a protection for suppliers. They are designed to ensure that competition is fair and transparent,”
However, while the legal framework sets the principles, the practical reality is often more complex.
Many situations that arise during a tender process are not explicitly described in legislation. Instead, they are shaped by how courts interpret the rules over time.
The legislation gives the framework, but it rarely answers every practical question. In many cases it is the courts that determine how the rules should be applied in specific situations.”
For suppliers, this means that understanding procurement law often requires more than reading the legislation itself. It involves understanding how rules are interpreted in practice and how different situations have been handled in previous cases.
The law does not always give clear answers
Many suppliers try to understand their rights by reading the procurement legislation itself. The challenge is that procurement law is largely framework legislation.
It outlines how contracting authorities should conduct procurements, but it rarely provides detailed answers to every situation that may arise during a tender process.
In reality, case law often determines how the rules are interpreted.
Over time, thousands of court decisions across Europe have shaped how procurement rules should be applied. These rulings often influence how contracting authorities and suppliers interpret requirements in tender documents.
For suppliers, this means that understanding procurement law is not always straightforward.
When suppliers seek legal advice
In practice, suppliers tend to contact procurement lawyers in two main situations.
The first is after a procurement has been awarded.
A supplier has submitted a bid but did not win the contract, and they want to assess whether something may have been incorrect in the evaluation process or in the winning bid.
The second situation is more proactive.
More suppliers are now seeking legal advice during the tender phase, in order to better understand how to interpret requirements or whether it might be necessary to request clarifications from the contracting authority.
This shift towards earlier involvement is becoming increasingly important as legal expectations on suppliers have evolved.
The growing importance of being proactive
A key concept in many procurement disputes is whether the supplier has actually suffered – or risks suffering – harm due to an error in the procurement process.
In some legal systems, courts place increasing emphasis on how suppliers act during the tender process, particularly when it comes to raising questions or requesting clarifications.
At the same time, the expectations on suppliers can vary between jurisdictions, and how this is assessed depends on national case law and the specific circumstances of each procurement.
If a requirement in the tender documents appears unclear, suppliers may be expected to request clarification before submitting their bid. Failing to do so could make it more difficult to argue later that the requirement was problematic.
As a result, many experienced suppliers now take a more strategic approach during the procurement process, raising questions early and ensuring they fully understand how requirements are interpreted.
When small details determine the outcome
Another challenge in public procurement is that relatively small details can sometimes have significant consequences.
Take reference checks as an example.
If a contracting authority attempts to contact a reference and does not receive a response, this may in some cases affect whether the requirement is considered fulfilled – even if the supplier has already confirmed with the reference that they are willing to participate.
Situations like this are not always clearly described in legislation. Instead, they often depend on how courts have interpreted similar cases in the past.
For suppliers, this highlights the importance of carefully reviewing both requirements and the evaluation process.
Read requirements carefully – and literally
One common mistake among suppliers is interpreting requirements based on what seems reasonable from a business perspective.
However, courts frequently interpret procurement requirements strictly based on their wording.
For example, if the tender documentation states that a requirement must be “verified”, the interpretation will depend on how the requirement is formulated and how it is understood in practice.
In some cases, providing a clear confirmation may be sufficient, while in others, the contracting authority may expect supporting documentation. This highlights the importance of carefully reviewing how each requirement is expressed and, where needed, seeking clarification.
This means suppliers need to read requirements carefully and ensure they provide exactly the type of information requested.
The growing role of AI in tendering
Artificial intelligence is becoming increasingly common in bid preparation. Many companies now use AI tools to draft texts, structure answers and summarize procurement documents.
There is currently no prohibition against using AI in tender preparation. However, suppliers should be aware of a potential risk.
In many procurement processes, the commitments described in the bid may later become contractual obligations.
If a bid contains descriptions of processes, capabilities or delivery models that the supplier cannot actually demonstrate or deliver, this could potentially create legal issues.
AI can therefore be a powerful support tool – but it should always be used with careful review.
Procurement is more flexible than many suppliers think
Despite the complexity of procurement rules, there is one important insight many suppliers overlook: tender documents are not always as fixed as they might seem.
Through clarification questions and dialogue during the tender period, suppliers can sometimes influence how requirements are interpreted or even adjusted.
By taking a proactive and strategic approach during the procurement process, suppliers can often both reduce legal risks and improve their chances of winning contracts.
In a procurement landscape where legal interpretations continue to evolve, knowledge and preparation remain some of the most important tools for suppliers.
Want to strengthen your public bidding skills?
Winning public sector contracts requires more than a competitive offer. Suppliers also need to understand procurement rules, documentation requirements, and how contracting authorities evaluate bids.
That’s exactly why we created Bid Excellence.
Bid Excellence is Mercell’s learning hub for suppliers who want to succeed in public sector sales. Through expert-led courses, practical resources, and certification programs, suppliers gain the knowledge and tools needed to navigate public tenders with confidence.
The platform brings together insights from experienced bid managers, procurement specialists, and legal experts to help suppliers:
- Understand how public procurement works
- Improve the quality of their bids
- Reduce compliance risks
- Increase their chances of winning contracts
Whether you’re new to public sector sales or looking to refine your bidding strategy, Bid Excellence provides structured learning modules, certification paths, and a resource center with templates, articles, and guides you can use in your daily work.