Excluded from a Public Procurement Procedure – What to Check

Receiving a decision excluding a tenderer from a public procurement procedure requires a prompt but careful response. Before deciding whether to bring an appeal, it is necessary to establish precisely what the evaluation committee found, which documents support its conclusion, and whether the tenderer genuinely failed to satisfy a requirement announced in advance.

This article provides a practical checklist for an initial review following exclusion. Detailed information about the legal analysis and available remedies is provided on the page legal protection following exclusion from a public procurement procedure.

1. Establish the exact date and method of notification

The first review does not concern the content of the tender, but the time available to respond. Record the exact date and time at which the decision was notified or became accessible in accordance with the procedure applicable to the procurement.

In many of the circumstances provided for under the Public Procurement Act, an appeal must be filed within 10 days. The starting date, however, depends on the type of act being challenged and the method of notification. It is therefore unsafe to rely solely on the date on which an employee of the company read the decision.

Preserve the notification from CAIS EPP, the electronic correspondence, and all information establishing when the notification was received.

2. Collect the complete participation file

The exclusion decision should not be considered in isolation. A proper assessment requires all documents showing what the contracting authority required, what the tenderer submitted, and how the evaluation committee reached its conclusion.

Prepare at least:

• the decision recording the exclusion;
• the evaluation committee’s minutes and report, where available;
• the contract notice, procurement documentation, and clarifications issued by the contracting authority;
• the ESPD and all documents demonstrating compliance with the selection criteria;
• the technical and financial proposals;
• documents concerning an association, third parties, and subcontractors, where applicable;
• any additional documents or clarifications requested and submitted;
• the messages, confirmations, and available system data from CAIS EPP.

Work with the final versions of the files actually submitted, rather than drafts remaining in the team’s internal folders.

3. Separate the reasons into facts, requirements, and legal conclusions

When reviewing the reasons, identify three separate elements:

1. Which specific requirement in the procurement documentation or legislation has been identified?
2. What fact did the evaluation committee establish concerning the submitted tender?
3. How was the connection between that fact and the decision to exclude the tenderer explained?

For example, it is not sufficient merely to state that the tenderer “does not comply with the technical requirements”. It must be possible to understand which parameter was not satisfied, where the requirement is stated, and which part of the proposal supports that conclusion.

Particular attention is required where the reasons are contained mainly in the evaluation committee’s minutes or report, while the final decision contains only general findings.

4. Check whether the requirement was clearly announced in advance

Compare the reasons for exclusion with the original procurement documentation and all published clarifications or amendments.

Check:

• whether the requirement actually appears in the procurement documentation;
• whether it was formulated clearly and unambiguously;
• whether the document or information was expressly required;
• whether the evaluation committee introduced a new condition during the evaluation;
• whether a general requirement was expanded through interpretation after the tenders had been submitted;
• whether the contracting authority’s clarifications alter the way in which the condition should be understood.

Where the procurement documentation permits more than one reasonable interpretation, it should be analysed whether the consequences of that ambiguity may properly be placed entirely on the tenderer.

5. Compare the reasons with the documents actually submitted

The next step is a file-by-file review. It is necessary to establish whether the irregularity alleged by the evaluation committee genuinely exists or whether the relevant information appears elsewhere in the tender.

ESPD and personal circumstances

Check whether the disputed information was completed in the correct section, whether all persons required to be covered were included, and whether the separate ESPDs correspond to the stated participation model.

Selection criteria

Compare the requirements concerning economic and financial standing, technical ability, and professional competence with the circumstances declared. Check the relevant periods, values, type of experience, roles of experts, and documents on which the tenderer relies.

Technical proposal

Confirm whether all minimum parameters are satisfied and whether there are contradictions between different parts of the proposal. An irregularity may arise not only from missing information, but also where a table, description, timetable, or appendix contains inconsistent data.

Financial proposal

Check the arithmetic calculations, unit and total prices, inclusion of all activities, and consistency between the electronic fields and the attached files.

Associations, third parties, and subcontractors

Establish which entity satisfies each criterion, which entity will perform the relevant activity, and whether this allocation is consistently reflected in the ESPD, association agreement, and remaining documents.

Further information about preparing and legally reviewing tenders is available on the page public procurement for tenderers and contractors.

6. Determine whether the issue is legal, technical, or evidential

Not every exclusion concerns a missing document. The cause may be:

• a genuine failure of the tender to comply with a condition announced in advance;
• unclear or contradictory procurement documentation;
• incorrect interpretation of the information submitted;
• failure to examine a particular file;
• a discrepancy between electronic fields and attachments;
• an issue with signing, uploading, or displaying a document in CAIS EPP;
• a lack of sufficiently specific reasons.

This distinction is important because it determines both the possible arguments and the evidence that must be collected.

Where a technical issue is suspected, preserve all available confirmations, system messages, timestamp data, and correspondence with technical support. Further information is available on the page CAIS EPP issues in public procurement.

7. Check whether the tenderers were treated equally

Review the published minutes and establish whether similar omissions were assessed in the same manner. It is important to determine whether the same standard was applied to all tenderers when reviewing the documents, technical proposals, and selection criteria.

A different result does not automatically amount to unequal treatment. The circumstances must be genuinely comparable and must have been treated differently.

8. Do not assume that every omission can be corrected

For certain irregularities, the legislation and applicable procedural rules permit additional documents or clarifications to be requested. This does not, however, mean that the tender may be replaced or substantially amended after the submission deadline.

The initial review should establish:

• whether the evaluation committee had grounds to request additional information;
• whether such a request was made;
• what precisely the tenderer submitted in response;
• whether the requested clarification would explain information already submitted or introduce new content into the tender.

This assessment depends on the nature of the document, the stage of the procedure, and the particular irregularity.

9. Prepare a brief chronology of the matter

For an initial legal assessment, arrange the facts in a concise chronology:

• the number and subject matter of the public procurement procedure;
• the date on which the tender was submitted;
• any requests for supplementation or clarification received;
• the date and content of the responses;
• the date and method of notification of the exclusion;
• the precise ground identified by the evaluation committee;
• the document or part of the tender that you consider was assessed incorrectly;
• the practical interest in continuing to participate.

A well-prepared chronology makes it possible to distinguish the material issues quickly from secondary disagreements with the evaluation.

10. When to seek a legal assessment

A legal assessment should be sought immediately where the reasons are unclear, the dispute depends on interpretation of the procurement documentation, the evaluation committee failed to consider a submitted document, or the time limit for seeking protection has already begun to run.

An appeal should not be based solely on disagreement with the result. Specific infringements must be identified, clear objections must be formulated, and the documents supporting them must be specified.

For information about the available remedies, proceedings before the CPC, and judicial review, see the page appeals and legal protection in public procurement.

Practical conclusion

Before filing an appeal, four main questions should be examined: what precisely the contracting authority required, what the tenderer actually submitted, how the evaluation committee reasoned its decision, and whether the same evaluation standard was applied consistently.

Where any of these elements does not correspond to the procurement documentation or the information in the procedure, a more detailed legal review may be required. Where the omission genuinely arises from the tender, an early analysis is also useful for reducing the risk in future procedures.

Ivanova LLP Law Firm reviews exclusion decisions, procurement documentation, submitted tenders, and data from CAIS EPP. For an initial assessment, send the decision, the evaluation committee’s minutes, the procurement documentation, and the final versions of the submitted documents.

Frequently Asked Questions

Is an appeal justified following every exclusion?

No. There must be a specific infringement concerning the interpretation of the procurement documentation, examination of the tender, reasoning of the decision, or application of a consistent standard to the tenderers.

Is it sufficient to review only the exclusion decision?

Usually not. The evaluation committee’s minutes or report, the procurement documentation, the clarifications, and the documents finally submitted should also be reviewed.

Can a missing document be submitted subsequently?

This depends on the type of document, the stage of the procedure, and the nature of the omission. Not every omission can be remedied, and supplementation must not result in an impermissible amendment to the tender already submitted.

What should I do if I suspect an issue in CAIS EPP?

Preserve the submission confirmations, system messages, timestamp data, correspondence with technical support, and copies of the files. A technical issue must be established through specific evidence.

What documents are required for an initial legal assessment?

The required documents include the exclusion decision, the evaluation committee’s minutes or report, the procurement documentation, the clarifications, the submitted tender, the ESPD, and the relevant communications from CAIS EPP.