Public procurement disputes are increasingly becoming multi-layered matters in which technical requirements, pricing logic, the contracting authority’s duty of review, and judicial scrutiny all intersect. In such disputes, the decisive factor is not merely which argument is advanced, but whether the client’s position as a whole is constructed in a manner that is legally well-founded, commercially credible, and procedurally defensible.
This is particularly evident in procurements where the dispute concerns the prohibition of cross-subsidisation and the possibility that a tender may be abnormally low in price. Case law confirms that a contracting authority cannot be required to carry out an audit-like review of every individual cost component or production stage. At the same time, the review must be substantive and sufficient to enable the contracting authority to reach a reasoned and verifiable conclusion as to the compliance of the tender.
It is equally important in such disputes not to conflate the review of cross-subsidisation with the assessment of an abnormally low tender. Although these issues may be related, their legal content is different. The Court has emphasised that the review of an abnormally low tender is broader than the review of cross-subsidisation, as the issue may also lie in miscalculations, the omission of material costs, or the underestimation of risks. This means that successful representation requires a comprehensive approach encompassing the procurement documents, the technical solution, and the pricing model at the same time.
From Glimstedt’s perspective, such disputes confirm that a successful outcome is achieved when technical, commercial, and procedural arguments are brought together into one clear and convincing whole. In practice, this means being able to assess not only what the procurement conditions require, but also to what extent those requirements must be evidenced, how the contracting authority’s questions must be answered, and what level of reasoning will later withstand challenge in review proceedings and before the courts.
