How to Stay Compliant With Cross-Border Tender Rules in the EU

Have you ever wondered what the process is to apply for cross-border tenders in the European Union? With approximately 520,000 public procurement notices published yearly worth more than €420 billion, the EU procurement market represents a significant opportunity for businesses of all sizes. However, navigating the complex regulatory landscape can be challenging, particularly when bidding across national borders. This comprehensive guide walks you through the entire process of participating in cross-border tenders in the EU while ensuring compliance with all relevant rules and regulations.

Understanding the EU Public Procurement Legal Framework

The foundation of EU procurement is built on three key directives that member states were required to transpose into national law by April 18, 2016:

• Directive 2014/24/EU on public procurement

• Directive 2014/25/EU on procurement by entities operating in the utilities sector

• Directive 2014/23/EU on the award of concession contracts

These directives establish purchasing procedures for public buyers and promote core principles including transparency, equal treatment, open competition, and sound procedural management. They're designed to create a procurement market that is competitive, open, and well-regulated—essential for putting public funds to good use.

One fundamental principle permeating this framework is that if your company is established in the EU, you have the right to compete for public tenders in any EU country. This means you can:

• Compete for public contracts in any member state without discrimination

• Use supporting documents (certificates, diplomas, etc.) issued by your country

• Have equal access to all tender information, regardless of where you're based

• Access review procedures in the respective country

Understanding EU Procurement Thresholds

Not all public contracts fall under EU procurement rules. The directives primarily cover contracts exceeding certain monetary thresholds, which are revised every two years. As of January 2024, the key thresholds are:

• Public Works Contracts: €5,538,000

• Supply and Service Contracts for Central Government Authorities: €143,000

• Supply and Service Contracts for Sub-Central Contracting Authorities: €221,000

• Light Touch Regime for Social and Other Specific Services: €750,000

For contracts below these thresholds, only national public procurement rules typically apply, though they must still adhere to general EU principles of transparency and equal treatment. It's important to note that these thresholds exclude Value Added Tax (VAT).

Step-by-Step Guide to EU Cross-Border Tendering

Step 1: Find Relevant Tender Opportunities

Higher-Value Tenders on TED

For contracts above EU thresholds, public authorities must publish notices on the Tenders Electronic Daily (TED) portal, which is the online version of the Supplement to the Official Journal of the EU. On TED, you can:

• Browse, search, and sort procurement notices by subject, country, purchaser, and more

• Register to save personalized searches and set up email alerts

• Use the Common Procurement Vocabulary (CPV) classification to find relevant notices

While basic information is published in all 24 official EU languages, full procurement notices typically appear only in one official EU language. This is an important consideration for cross-border bidding that we'll address later.

Lower-Value Tenders on National Portals

For contracts below EU thresholds, public authorities typically publish opportunities only on their national procurement portals. For example, in the Netherlands, all government contract tenders are published on TenderNed.nl. To access these:

• Identify the national portals for countries you're interested in

• Register on these platforms

• Set up alerts for opportunities that match your business profile

Step 2: Register and Set Up Required Accounts

Create an EU Login Account

Your first step toward participating in EU procurements is creating an EU Login account:

1. Visit the EU Login registration page

2. Enter your personal information (name, email)

3. Create a secure password

4. Verify your account through the confirmation email

Register Your Organization in the Participant Register

Once you have an EU Login, you need to register your organization to obtain a Participant Identification Code (PIC):

1. Log in to the Funding & Tenders Portal

2. Click on "Register an Organization"

3. Provide your organization's legal information, including legal name, registration number, VAT number, and address

4. Submit the information to receive your unique 9-digit PIC

5. Use this PIC for all future tender submissions

This registration process is crucial, as you must quote your PIC in all correspondence with the Commission and for participation in EU programs.

Step 3: Understand and Use the European Single Procurement Document (ESPD)

The ESPD is an electronic self-declaration document that simplifies the qualification process for tendering. Instead of submitting all documentation upfront, businesses self-declare that they meet the necessary regulatory criteria or commercial capability requirements. Only the winning contractor needs to subsequently provide full documentation.

Implemented under the EU's 2014 Directive on Procurement, the ESPD is intended to reduce administrative burden, particularly for SMEs. When using the ESPD:

1. Complete all required sections, including information about your company, exclusion criteria, and selection criteria

2. Ensure you can provide supporting documents upon request if selected

3. Note that in some regions (like Scotland), there may be specific additional questions

Step 4: Use e-CERTIS to Navigate Documentation Requirements

e-CERTIS is a free, online tool that helps companies and contracting authorities cope with different forms of documentary evidence required for cross-border tenders. This is particularly important because documentation requirements vary across member states.

e-CERTIS helps you:

1. Identify which documents from your country are equivalent to those required in the country where you're bidding

2. Understand what certifications contracting authorities in different countries require

3. Navigate the variety of certification systems across the 27 Member States

The system was initially voluntary but became mandatory for EU member states to maintain and use by October 18, 2018, following the 2014 Directive on Public Procurement.

Step 5: Prepare and Submit Your Bid Through eSubmission

Understanding eSubmission

eSubmission allows economic operators to respond electronically to EU procurement procedures by preparing submissions and submitting them in a structured and secure way. The system supports various procurement procedures, including:

• Open procedures

• Restricted procedures

• Competitive procedures with negotiation

• Design contests

The Submission Process

1. Access the tender through TED eTendering or through an invitation

2. Click on "Submit a tender" to be redirected to eSubmission

3. Acknowledge receipt of any invitation to tender

4. Click on "New submission" to start your submission

5. Complete all required sections and upload necessary documents

6. Submit your bid securely through the platform

7. Save your submission receipt as proof

For restricted procedures, competitive procedures with negotiation, or negotiated procedures, you may need to follow specific steps outlined in the invitation.

Step 6: Navigate Post-Submission Processes

Understanding Evaluation Criteria

Contracts are awarded to the "most economically advantageous tender," which can be identified on the basis of.

• The lowest price

• The best price-quality ratio (considering factors like technical quality, environmental and social aspects, trading and delivery conditions)

The evaluation criteria must be transparent and applied equally to all bidders, without discrimination based on nationality.

Understand Your Rights to Review and Remedies

If you believe your tender was not fairly evaluated, the EU's Remedies Directives establish minimum requirements for national review procedures. These include:

• Remedies Directive for the public sector (Directive 89/665/EEC)

• Remedies Directive for the utilities sector (Directive 92/13/EEC)

These directives ensure you have access to effective review procedures if you believe procurement rules have been violated.

Challenges and Solutions in Cross-Border Tendering

Limited International Participation

Despite the legal framework enabling cross-border tendering, participation rates remain low. Research shows that only 4.5 percent of large public tenders (over €1 million) were awarded to foreign companies in 2017. Construction ranked 39th in a comparison of cross-border bidding across 44 industries.

This presents both a challenge and an opportunity for businesses willing to navigate the cross-border procurement landscape.

Language Barriers

While basic information on TED is published in all 24 official EU languages, full procurement notices typically appear only in the contracting authority's language. To overcome this:

• Use translation services for key documents

• Consider partnering with local companies

• Ensure your bid is written in the required language

Perceived Bias Against Foreign Bidders

Construction companies cite bias against foreign bidders as the single biggest barrier to cross-border tendering, followed by regulatory challenges as companies navigate complex and diverse policies across countries. To address this:

• Thoroughly research the specific requirements of the contracting authority

• Ensure full compliance with local regulations in each country

• Consider establishing local subsidiaries for regular participation in specific markets

Forming Consortia for Larger Projects

For larger contracts that may exceed your company's capacity:

• Consider forming consortia with other companies, including local partners

• Clarify roles, responsibilities, and risk-sharing arrangements

• Ensure the consortium collectively meets all qualification criteria

Tools and Resources for Compliance

EU Procurement Platforms

• TED (Tenders Electronic Daily): The official EU platform for high-value tenders

• EU Funding & Tenders Portal: For registering organizations and accessing opportunities

• eSubmission: For electronically preparing and submitting tenders

Supporting Tools

• e-CERTIS: For understanding documentation requirements across borders

• European Single Procurement Document (ESPD): For simplifying the qualification process

• Common Procurement Vocabulary (CPV): For standardized classification of procurement subjects

Benefits of Embracing Cross-Border Tendering

For Businesses

• Access to a significantly larger market worth over €420 billion annually

• Diversification of client base across multiple countries

• Opportunity to establish a European presence and reputation

For Contracting Authorities

• Increased competition leading to better value for money

• Access to specialized expertise that may not be available domestically

• Statistical analysis indicates that each additional bidder in a tender, on average, reduces contract costs

Conclusion

The EU public procurement market offers significant opportunities for businesses willing to navigate its regulatory framework. By following this step-by-step guide and leveraging the tools and resources available, companies of all sizes can successfully compete for contracts across the EU while maintaining compliance with procurement rules.

The push toward electronic procurement through tools like ESPD, e-CERTIS, and eSubmission is making the process increasingly streamlined, reducing administrative burdens particularly for SMEs. Nevertheless, challenges remain, especially regarding language barriers and variations in national implementation of EU directives.

As you explore cross-border tendering opportunities, remember that preparation is key. Understand the rules, learn the processes, utilize the available tools, and consider seeking expert advice when needed. With the right approach, cross-border tendering can become a valuable growth strategy for your business in the expansive EU public procurement market.