The contracting authority has not accepted your certificate or attestation –

Must the contracting authority request clarification before excluding you?

For the purpose of ensuring the proper course of the procurement procedure, the contracting authority may request that a participant clarify submitted documents or supplement other or missing documents within a reasonable period, and may make this request repeatedly (§ 46 of Act No. 134/2016 Coll., on Public Procurement, as amended from 3 April 2025, available at zakonyprolidi.cz). This is an option for the contracting authority, not its general obligation — the law uses the word "may" to give the contracting authority a choice, not an instruction.

The contracting authority may exclude a participant for two separate reasons, which must be distinguished. It may exclude them if the submitted documents do not meet the procurement conditions or if the participant failed to submit them within the specified period — this reason arises on its own, without the need to clarify anything beforehand. The second, separate reason is a situation where the documents were not clarified or supplemented based on a request under § 46, which, however, the contracting authority was not obliged to make (§ 48 of the Public Procurement Act).

In other words, if the contracting authority resorts to a request under § 46 and the supplier fails to respond properly, it may exclude them for this reason as well — but the request is not imposed on it as a condition for every exclusion.

At the same time, the contracting authority is obliged to promptly send the excluded participant a notice of exclusion with justification, so the absence of justification is in itself a defect that can be challenged in objections regardless of whether the exclusion is substantively correct. In practice, this defect appears more often than expected — contracting authorities sometimes send only a brief statement that the participant failed to meet the qualification, without stating which specific document or requirement it concerns and why the submitted explanation, according to the contracting authority, did not stand up.

From this distinction arises the first question you must ask yourself immediately after receiving a negative opinion on your document: did the contracting authority exclude you because, in its view, the document simply does not meet the procurement conditions, or because you unsatisfactorily responded to its request for clarification? In the first case, you have no legal right to be requested by the contracting authority to clarify before being excluded — it may, but does not have to.

Under specific circumstances, however, not using this procedure may be questionable, especially if it was a remediable ambiguity that the contracting authority could have clarified without changing the bid; in such a case, the failure to use § 46 may weaken the contracting authority's position in a review, although this in itself does not automatically invalidate the exclusion.

In addition, the law allows the contracting authority to make a request for clarification repeatedly and to extend the specified period or excuse its missing, so a single unsuccessful response from the supplier does not automatically mean the end of the possibility to further specify the document, if the request occurred at all. The supplier may itself point out to the contracting authority that the disputed fact can be clarified or documented using the procedure under § 46 — however, the decision whether to use this option always remains with the contracting authority, and the supplier has no unilateral right to it.

Whether a specific doubt of the contracting authority is clarifiable, or whether it is a deficiency that clarification can no longer save, is assessed on a case-by-case basis — therefore, the lawyers of the Prague-based ARROWS law firm recommend consulting this issue immediately after receiving the request, not after the deadline for response has expired.

You should respond to the request for clarification as specifically as possible and with evidence, not just by repeating what the contracting authority has already rejected. If the contracting authority disputes that your document proves the required qualification, demonstrate how it is substantively equivalent to the requirement.

If possible, rely on a statement from the issuer of the document or on a comparison with the domestic equivalent. A clarification that merely repeats the original assertion without new supporting documents will not reduce the risk of exclusion. It is also useful to demonstrate how the same or a similar document was accepted in other procurement procedures, although this in itself does not guarantee equivalence and the contracting authority assesses such an overview only as a supporting argument.

Foreign document as a substitute for a domestic certificate

The question of the equivalence of foreign documents is one of the most common causes of qualification disputes in technical professions. The Supreme Administrative Court dealt with a dispute over a procurement condition under which a foreign member of the implementation team could prove qualification with another similar document issued in their country of origin, authorizing them to practice the given expertise in that country, without having to possess directly a certificate of authorization issued by the Czech Chamber of Chartered Engineers and Technicians Active in Construction.

The court concluded that a document issued abroad may be sufficient for the contracting authority to prove the qualification of an individual member of the implementation team, provided it is an equivalent document in relation to proving qualification, but the contracting authority's requirements cannot in any way diminish the public law demands placed on persons performing certain activities in the Czech Republic (judgment of the Supreme Administrative Court, file no. 9 As 125/2024 of 3 December 2025, available at vyhledavac.nssoud.cz).

Thus, the supplier must both prove qualification to the contracting authority and, at the same time, ensure compliance with all public law obligations associated with participation in the public contract and with the performance of the activity itself. The difference between the two issues also has a practical impact on how compliance with the procurement conditions is documented: the document submitted to the contracting authority serves to prove eligibility for the purposes of the tender procedure, while the document required by public law regulations serves to protect the public interest in the quality of the activity performed, and both may be issued by different authorities with different assessment criteria and different periods of validity.

In practice, this means two separate things that are easily confused. The procurement procedure may recognize the foreign document as equivalent, and yet you still have an obligation to have the appropriate authorization for the actual performance of the activity in the Czech Republic, if required by public law regulations. The argument that the foreign document was sufficient for you to participate in the procurement procedure does not excuse you if you could not perform the activity at all without domestic authorization.

This dual track is often surprising for foreign suppliers because, in their home legal system, qualification for a public contract and authorization to perform an activity often merge into a single document, so they do not realize that in the Czech Republic both matters need to be addressed separately. A similar issue of setting technical qualification criteria is also addressed outside the construction sector; specifics in infrastructure contracts are analyzed in the text on setting technical qualification criteria in rail transport.

When qualification conditions are disproportionate

The second source of disputes is the assertion by the contracting authority or a supervisory body that the qualification requirements as a whole or in combination exceed what corresponds to the complexity of the contract. A supplier typically encounters this assertion at a moment when it is already too late to challenge the condition itself, and must defend against it indirectly, for example, by arguing within the defense of a specific document.

If the contracting authority requires proof of economic or technical qualification, it must set, proportionately to the complexity and scope of the subject matter of the public contract, which criteria it requires and what minimum level for their fulfillment (§ 73(6) of the Public Procurement Act). At the same time, the procurement conditions must not allow for unjustifiably guaranteeing a competitive advantage to certain suppliers or creating unjustified obstacles to economic competition.

The Municipal Court in Prague assessed a dispute in which a subsidy provider found the qualification requirements as a whole to be disproportionate, without specifically analyzing which combination of requirements and why exceeds the limits of the law. The court annulled the decision for unreviewability because the administrative authorities did not state which specific combination of requirements and why exceeds the limits of the law, even though the supplier submitted its own justification and expert opinion for each individual criterion (judgment of the Municipal Court in Prague, file no. 5 A 46/2024 of 22 October 2025, available at vyhledavac.nssoud.cz).

The court explicitly emphasized that at this point it cannot assess whether the supplier actually violated the obligations under the Public Procurement Act — that is the task of the administrative authorities, who must first justify their conclusion in a reviewable manner. The annulling judgment therefore does not mean that the court recognized the qualification requirements as proportionate; it only means that the administrative authorities have not yet properly justified their opposite conclusion.

At the same time, the court confirmed the general rule according to which the more detailed and strict the requirements chosen by the contracting authority, the higher the demands placed on their justification, and that the assessment of the proportionality of the qualification is primarily a legal question based on the factual state established on the basis of the submitted evidence, not on a general impression of the scope of the requirements.

For a supplier defending against the assertion that its qualification or procurement conditions were disproportionate, this implies a specific defense strategy that cannot be replaced by a general assurance that they met the requirement or could have met it.

Do not limit yourself to a general assertion that the requirement was fine. Explain for each disputed criterion separately why it corresponds to the scope and complexity of the contract, and if you can, support this with an expert opinion or comparison with common practice in comparable contracts. The more specific and better documented your argumentation is, the more difficult it will be for the supervisory body to dismiss it with a blanket assertion about the disproportionality of the whole. The court and the supervisory body must do the same on their side, and if they do not, their decision will not stand as reviewable.

How detailed an analysis of individual criteria for a specific contract to prepare depends on how many qualification requirements the contracting authority has set and how they are interconnected — therefore, the lawyers of the Prague-based ARROWS law firm always conduct this analysis after studying the entire procurement documentation, not just the disputed point.

Deadlines for objections: two different situations, two different deadlines

Objections may be submitted by a supplier who is threatened with or has suffered harm due to the procedure of the contracting authority, in writing against all acts or omissions of the contracting authority in the procurement procedure, including the setting of procurement conditions (§ 241 of the Public Procurement Act). However, they cannot be submitted against the procedure of the contracting authority in a small-scale public contract, which is of no practical significance for above-threshold and below-threshold procedures, which are also concerned with the qualification issue addressed in this text.

However, it is always crucial to carefully distinguish what exactly the objections are aimed at, because the deadline and what you can still object to differ. The law does not blur this boundary even if both issues are substantively related.

If a deadline for submitting requests to participate is set, objections against conditions relating to the supplier's qualification must be delivered to the contracting authority no later than the end of this deadline (§ 242(3) of the Public Procurement Act). Conversely, objections against acts notified in documents that the contracting authority is obliged under the law to publish or send to the complainant, i.e., typically against a notice of exclusion, must be delivered within fifteen days of their publication or delivery (§ 242(2) of the same Act).

In addition, it is necessary to watch out for this deadline for another reason: the contracting authority may shorten it in the procurement documentation. The contracting authority may stipulate that objections against qualification or other procurement conditions must be submitted no later than 72 hours before the end of the relevant deadline for submitting requests to participate or bids (§ 242(5) of the Public Procurement Act). Anyone who relies only on the general rule "by the end of the deadline for bids" without verifying whether the procurement documentation contains this shortening risks submitting objections late, even if they would still meet the deadline under the general rule.

Therefore, anyone who wants to object that the qualification conditions themselves were set disproportionately must do so before submitting a request to participate or a bid — and at the moment that applies according to the procurement documentation of the specific contract, not after the contracting authority excludes them for failing to meet them.

Uncertainty as to whether you will meet a given condition at all is usually not a good reason to wait — if you consider the condition disputed at the very beginning, it is safer to submit preventive objections as soon as possible, even if it eventually turns out that you met the qualification. In objections against exclusion, you can defend against how the contracting authority evaluated your specific documents, but not against the fact that the requirement itself was set unlawfully from the beginning, if you did not object to it in time.

This distinction is often overlooked in practice because the supplier focuses on defending against what currently hurts, i.e., against exclusion, and forgets that the root of the problem could have arisen weeks before, at the moment when the contracting authority first published the procurement condition and when the first reaction should have come.

How exactly to lay out this strategy for a specific contract depends on when you actually learned about the disputed condition or exclusion, and whether the procurement documentation shortened the deadline under § 242(5). In larger contracts with multi-round clarification of documents, the deadlines for individual steps may also overlap, and keeping track of what has already been objected to and what can still be objected to becomes a separate discipline that is advisable to maintain in writing from day one of the procurement procedure, not when the first negative opinion of the contracting authority arrives.

Errors that cost suppliers the contract when defending qualification

The most common error is waiting to see how the contracting authority decides on qualification without the supplier using the deadline to object to the procurement condition itself. If you consider the condition disproportionate, you must object to it by the end of the deadline for submitting a request to participate or a bid — or 72 hours before its end if the procurement documentation has shortened it — otherwise this argument will not help you in a later stage of the procedure.

The second error is a response to a request for clarification that merely describes the original document again without bringing new evidence or a more specific explanation. A contracting authority that has already rejected a document once needs to see something extra, not the same thing wrapped in different words, and without this change, the chance of success does not increase with another round of clarification.

The third error is confusing the equivalence of a document for the purposes of the procurement procedure with the public law authorization to perform the activity. Suppliers sometimes think that once the contracting authority has recognized a foreign document, they have also resolved the question of whether they can legally perform the activity in the Czech Republic. These are two separate questions that need to be verified separately already during the preparation of the bid, ideally in the form of a separate legal assessment for each foreign member of the implementation team individually, because public law requirements differ from field to field and what applies to civil engineering may not apply to another regulated profession.

The fourth error is defending against the disproportionality of qualification conditions only generally, without analyzing individual criteria and their combination. As shown by the cited judgment of the Municipal Court in Prague, a general assertion of disproportionality will not stand either on the part of the contracting authority or on the part of the supplier defending against such conditions — both parties must argue on specific requirements, not on the impression of the whole.

The fifth error, which appears less frequently but is all the more difficult to correct, is submitting objections against the wrong act of the contracting authority — i.e., confusing the defense against exclusion with the defense against the procurement condition itself, although both aim elsewhere and have a different deadline.

The sixth error, which is often associated with the fifth, is underestimating the role of an expert opinion or assessment when defending against the disproportionality of qualification requirements. In the cited Prague dispute, it was precisely the expert assessment that helped the supplier to specifically demonstrate why each individual requirement corresponds to the minimum necessary to perform the contract; without it, the argumentation would remain just an assertion against an assertion.

The connections between setting qualification criteria and the risk of hidden discrimination are analyzed in the text on hidden discrimination in public procurement; indeed, a seemingly neutral requirement can de facto exclude a certain group of suppliers just as effectively as open disadvantage. How exactly to evaluate these errors for a specific contract and what can still be done about them depends on the stage of the procedure you are in — therefore, the lawyers of the Prague-based ARROWS law firm always make this diagnosis immediately after the first contact with the client, not after drafting the objections.

Where the qualification defense breaks

Final summary

The article showed that the defense against unrecognized qualification stands on three pillars: on the reason for which the contracting authority excluded you and whether it had legal support under Czech legislation for this specific procedure, on the substantive equivalence of your document with the required qualification, and on whether you submitted objections within the correct deadline against the correct act of the contracting authority.

For company management, two deadlines and one question are decisive. The first deadline is the end of the deadline for submitting a request to participate or a bid, by when you must object to the disproportionality of the qualification conditions themselves — but beware that the procurement documentation can shorten this deadline to up to 72 hours before its end. The second is fifteen days from the delivery of the notice of exclusion. The question is whether your foreign or alternative document actually substantively corresponds to what the contracting authority required, because the entire defense stands on this.

Delaying any reaction does not pay off here. Anyone who waits with objections against the procurement condition until exclusion loses the opportunity to use this argument at all. Suppliers who monitored the deadlines and supported the response to the request for clarification with specific evidence defended their participation in the procedure; those who relied on general arguments lost the dispute over their own exclusion.

The lawyers of the Prague-based ARROWS law firm will assess whether the contracting authority acted in accordance with the law, prepare a response to the request for clarification, draft and submit objections within the correct deadline, and represent you in the entire procedure before the Office for the Protection of Competition and in any subsequent judicial review of its decision. Write to us at consultation@arws.cz or review our public procurement service.

EN perex: You submitted a bid, proved your qualification exactly as you have done in dozens of other contracts, and the contracting authority still writes that it does not recognise your document. Before drafting an objection, you need to know what the law still allows you to do at this point, and what is already too late. The Prague-based ARROWS law firm assesses whether the contracting authority acted correctly and prepares a defence that has a real chance of succeeding.