22/10/2026
Access to the public procurement file is one of the essential safeguards of transparency in award procedures and of respect for the rights of economic operators. Being able to examine the documents on which the evaluation of tenders and the award of the contract were based makes it possible to verify how the contracting authority applied the requirements of the procurement documents and substantiated the outcome of the procedure.
The importance of this right becomes particularly clear when an economic operator wishes to challenge the outcome of a procedure. In order to raise specific and reasoned objections, it may need to know not only why its own tender was evaluated in a particular way, but also the relevant elements of the winning tender and the documents on which the contracting authority's decision was based.
At the same time, access to the file must be exercised with due regard for information protected by law, including trade secrets, personal data and intellectual property rights. The legal issue is therefore not a choice between transparency and confidentiality, but the striking of a lawful balance between these requirements.
The legal regime governing access to the public procurement file is laid down mainly in Law No 98/2016 on public procurement and Government Decision No 395/2016 approving its implementing rules. Depending on the nature of the request and when it is made, the provisions of Law No 544/2001 on free access to information of public interest may also apply.
The procurement file comprises the documents drawn up or obtained by the contracting authority in connection with the organisation and conduct of the procedure, the evaluation of tenders and the award of the contract. Access to these documents makes it possible to verify compliance with the principles governing public procurement, including transparency, equal treatment and non-discrimination of economic operators.
A distinction must be drawn, however, between access requested by a tenderer or candidate after the outcome of the procedure has been communicated and access requested under the general regime for information of public interest. These situations are not identical, and the legal basis, the applicable time limit and the scope of access must be determined in light of the specific circumstances.
In particular, Article 217 of Law No 98/2016 regulates access to the procurement file, including after the procedure has been completed, subject to the limitations concerning information that is legally protected.
An essential aspect is compliance with the time limit within which the contracting authority must allow the requested documents to be consulted.
Under Article 217(6) of Law No 98/2016, after the outcome of the procedure has been communicated, the contracting authority must, upon request, allow tenderers and candidates access to the procedure report and to the information to which the law grants them a right of access, within no more than one working day of receiving the request. The provision separately regulates access to certain information in the technical proposals and to price or cost justifications that have not been declared and proven to be confidential.
This special rule is intended to enable economic operators to obtain, within a short period, the information they need to assess the lawfulness of the outcome of the procedure and to decide whether to pursue the available remedies.
Where the request is made under Law No 544/2001, the time limits laid down in Article 7 of that act must be taken into account, including the possibility of extending the response period under the conditions expressly provided for by law.
The contracting authority must therefore correctly identify the applicable legal regime and avoid both applying a general time limit to a situation subject to a special one and treating all access requests as governed by the same rules.
Compliance with the time limit should not be regarded merely as a formal obligation. Access must be organised in such a way that the applicant can actually examine the documents to which it is entitled, without delays that would defeat the legitimate purpose of the request.
In practice, one of the most frequent questions is whether the contracting authority must send all the requested documents by e-mail or whether it may arrange for the file to be consulted at its premises.
The legislation does not lay down, as a general rule applicable in all situations, an obligation to scan in full every paper-based file and send it electronically. However, this cannot be interpreted as meaning that the contracting authority may restrict access arbitrarily or impose a method of consultation that makes it impossible to exercise effectively the right recognised by law.
Physical consultation of the documents may be a means of ensuring access, provided that it is organised within the statutory time limit and allows the requested documents to be examined effectively. Setting a date and time slot for consultation is not in itself unlawful, but the arrangement chosen must be assessed against the applicable time limit and the circumstances of the request.
Where the special time limit of no more than one working day laid down in Article 217(6) of Law No 98/2016 applies, the consultation appointment must respect that limit. An invitation to consult the file on a date after the statutory deadline does not relieve the contracting authority of its obligation to ensure timely access.
Sending the documents electronically may be an appropriate solution, particularly where they already exist in digital form and can be communicated without breaching any legal restrictions. The specific method of communication must, however, be assessed in light of the nature of the documents, the request made and the applicable rules.
Consequently, a distinction must be drawn between the right to have access to documents and the right to receive them in a particular format. The two do not automatically coincide, but nor can they be separated in a way that deprives the right of access of its substance.
One of the most sensitive issues arises when the successful tenderer invokes the confidentiality of its technical proposal, its financial proposal or other documents submitted in the procedure.
Article 57 of Law No 98/2016 regulates the protection of certain information identified and proven by economic operators to be confidential, in particular where it constitutes personal data or technical or trade secrets or is protected by intellectual property rights.
It follows from this provision that merely stating that a tender is confidential is not sufficient to justify excluding it entirely from access. The specific information for which protection is sought must be identified, and its confidential nature must be justified under the conditions laid down by law.
Consequently, the contracting authority should neither automatically accept a general declaration of confidentiality nor consider that all components of a tender are subject to the same legal regime. The analysis must be carried out by reference to the information actually contained in the documents and the nature of the protection invoked.
By the same token, an economic operator's interest in consulting a competitor's tender does not justify the unconditional disclosure of all information. The protection of trade secrets and of the other categories of information recognised by law remains mandatory where the legal conditions are met.
The solution therefore requires a specific, case-by-case examination of the documents in order to determine which information can be disclosed and which must be protected. Where confidentiality concerns only certain passages or elements, the possibility of disclosing the rest of the document, while protecting the information exempt from disclosure, must be considered.
Access to the procurement file is not merely a means of obtaining information about the contracting authority's activity. In certain situations, it is indispensable for the effective exercise of the right to challenge the outcome of the procedure.
An economic operator that does not know the documents relevant to the evaluation of the winning tender may face serious difficulties in identifying and substantiating any irregularities. If access is refused without sufficient legal justification, the ability to bring an informed challenge may be impaired.
This aspect must also be examined in light of European Union law, which requires effective remedies to be available in public procurement. The case-law of the Court of Justice of the European Union, including Case C-927/19, has highlighted the need to weigh the applicant's interest in obtaining the information needed to defend its rights against the competitor's interest in protecting confidential information and trade secrets.
This approach rules out the idea that the contracting authority has unlimited discretion to decide what information to disclose. The decision to grant or refuse access must be based on the specific circumstances, comply with the applicable rules and allow the lawfulness of the solution adopted to be reviewed.
In this context, the protection of confidential information must not be applied in a way that makes the exercise of the right to challenge the contracting authority's acts excessively difficult or illusory. At the same time, the right to an effective remedy does not mean that all information requested must be disclosed, regardless of its legal status.
The balance must be struck through an actual analysis of the documents and the identification of a solution that respects both the transparency of the procedure and the protection of legitimate information.
The award procedure report occupies a central place in the procurement file, as it contains elements relevant to justifying the outcome. Article 216(1¹) of Law No 98/2016 regulates the publication of the procedure report and, where applicable, the interim report in SEAP (the electronic public procurement system), under the conditions laid down by law, excluding confidential information or information protected by intellectual property rights.
As regards the winning tender, the access request may concern the qualification documents, the technical proposal, the financial proposal, the clarifications provided during the evaluation and the price or cost justifications. Each category must be assessed in light of the applicable legal provisions and any information that is protected.
It is not enough for the contracting authority to invoke the confidentiality of the winning tender in general terms in order to refuse access to all documents. At the same time, access cannot be granted without checking which information may not be disclosed under the law.
Where certain elements are exempt from disclosure, it is important that the restriction be limited to the protected information and properly justified. This approach makes it possible to maintain an adequate level of transparency without affecting the legitimate rights of the successful economic operator.
In order to comply with the legal framework and reduce the risk of litigation, the contracting authority must deal with each request according to its content and purpose.
First, the applicable legal basis must be identified and the time limit within which access must be granted must be determined. Second, the documents requested must be identified and the legal status of the information they contain must be analysed. Third, the contracting authority must determine the specific method of access and inform the applicant of the conditions under which it may consult the documents or obtain copies, subject to the legal restrictions.
Where access to certain information is refused, the reasons must be specific and indicate the legal basis for the restriction. A general statement based solely on the existence of confidentiality declarations may be insufficient if it does not explain why the information requested actually falls within the scope of legal protection.
The contracting authority must also take into account the possibility that the request is linked to the exercise of a remedy. The time limits for challenging the outcome must be monitored separately, since merely submitting an access request does not automatically suspend or interrupt the time limits laid down by public procurement legislation.
Rigorous handling of requests contributes to the transparency of the procedure, protects the rights of participants and reduces the risk that unjustified refusals or delays become the subject of further challenges.
Access to the public procurement file must be regarded as a guarantee of transparency and of the ability to verify the lawfulness of the award procedure. The contracting authority must comply with the applicable time limits, ensure effective access to the documents that may be disclosed and carry out a specific analysis of any restriction based on confidentiality.
Physical consultation of the documents may be a lawful means of access, without this amounting in all cases to an obligation to send the entire file electronically. However, the method chosen must comply with the statutory time limit and must not prevent the effective exercise of the right of access.
Equally, confidentiality cannot be invoked in the abstract to exclude documents entirely from consultation. The protection of information must be justified and proportionate, and its application must be reconciled with the right of economic operators to verify the outcome of the procedure and to have access to effective remedies.
A rigorous legal approach therefore requires a balance between transparency, the protection of legitimate information and respect for the rights of participants in the award procedure.
For information purposes only. The application of the rules on access to the procurement file must be assessed in light of the specific documents, the time at which the request is made and the legislation in force.
Author: P.A.
