A bidder's rights – the Procurement Act as a seller's protection
Taking part in public procurement can sometimes feel as though all the power lies with the buyer and the rules are endless. The Public Procurement Act (1397/2016) does not, however, exist only for contracting authorities. It is legislation built to safeguard competition and to protect you in particular — the bidding company.
When you know the rights written into the law, you can operate in the market with more confidence, protect your own expertise and make sure the competition is fair. Here are your most important rights as a bidder under the Procurement Act.
1. The right to equal treatment (section 3)
The whole Procurement Act rests on equal treatment and non-discrimination. You have an absolute right to be treated under the same rules as all your competitors. A buyer may not draft the tender documents so that they are tailored to favour one particular supplier, and the requirements cannot be changed mid-tender to the benefit of some. All communication, information and requirements must be shared openly with every participant.
2. The right to protection of trade secrets (section 138)
Preparing a bid often requires opening up the company's internal processes, pricing models or technical innovations. You have a legal right to mark those parts of your bid that are your company's trade secrets.
The contracting authority may not disclose this information to your competitors, not even after the decision. It is worth remembering, however, that not everything can be kept secret: the total price of a bid, or the factors on which bids are compared (the parts affecting the quality assessment), cannot as a rule be trade secrets.
3. The right to take part in market dialogue (section 65)
Contracting authorities have the right — and often the need — to survey the market before publishing the actual tender documents. You have the right to take part in these market dialogues without fear of being shut out of the tender itself later.
The law guarantees that a company that has provided information may take part in the tender, provided the buyer ensures the dialogue does not distort competition (by giving the other bidders the same information shared in the dialogue, for example).
4. The right to a reasoned procurement decision (sections 114 & 115)
Once the tender has been decided, you do not have to guess at the outcome. You have a legal right to receive the procurement decision setting out the factors that materially affected it.
The decision or its annexes must clearly state:
- Who won the tender.
- What the advantages of the winning bid were compared with yours.
- How the award criteria were applied in practice.
- If your bid was rejected altogether, the buyer must give the precise reasons.
5. The right to a standstill period before the contract (section 129)
Choosing the winner does not mean signatures go on paper the next day. The Procurement Act imposes a mandatory standstill period on procurements above the EU threshold and on national procurements. The contract can typically be concluded at the earliest 14 days after you have been notified of the procurement decision.
The purpose of the standstill period is to safeguard your right to study the decision and assess whether an error occurred in the procedure that you want to challenge, before the contract is locked in.
6. The right to demand that an error be corrected: legal remedies
If you notice that a buyer has acted contrary to the Procurement Act (comparing bids incorrectly or choosing a bidder that does not meet the conditions, for example), you have strong legal remedies:
- Procurement rectification (section 132): You can require the contracting authority itself to correct its error. This is a fast way to address clear mistakes. The request must be made within 14 days of being notified of the decision.
- Appeal to the Market Court (section 146): If the contracting authority does not correct its error, you can take the matter to the Market Court. The court can, for example, annul an incorrect decision, order the buyer to correct its procedure or, in certain cases, order the authority to pay compensation to a bidder who was treated unfairly.
The Procurement Act sets strict boundaries on buying, and those boundaries exist so that the best solution always wins in fair competition. Knowing your own rights is a basic requirement for every successful bidder.
Frequently asked questions
What are a bidder's most important rights under the Procurement Act?
The right to equal treatment (section 3), to protection of trade secrets (section 138), to take part in market dialogue (section 65), to a reasoned procurement decision (sections 114–115) and to a standstill period before the contract is signed.
Does taking part in a market dialogue prevent you from bidding?
No. The law guarantees that a company that took part in the dialogue may also take part in the tender itself, provided the contracting authority ensures the dialogue does not distort competition — by sharing the same information with all bidders, for example.
What must a procurement decision state?
Who won, what the advantages of the winning bid were compared with yours, and how the award criteria were applied. If your bid was rejected, the buyer must give the precise reasons.