A challenging the awarding of a contract in a public tender It allows for challenging a public procurement decision when there are grounds to believe that the selection of the winning bid, the evaluation of the bids, or the procedure itself violated the applicable rules.

For a company that has lost a tender, the essential question is not simply whether it disagrees with the result. It is about determining if there is a legally relevant illegality and, above all, acting within the appropriate timeframes. In public procurement, some of these timeframes are particularly short and can determine whether it is still possible to prevent the signing or execution of the contract.

The analysis must be based on the procedural documents, the proposals, the jury reports, the preliminary hearing ruling, and the award decision. A seemingly small difference between what the tender specifications required and what was actually evaluated can completely alter the legal framework.

It is also important to confirm which version of the Public Contracts Code is applicable. Decree-Law No. 177/2026, of September 4, introduced a relevant amendment to the CCP, which came into force on October 1, 2026, and has its own rules for application over time. The start date of the procedure may therefore be crucial in identifying the applicable regime.

What is the process of challenging the award of a contract in a public tender?

Challenging an award means legally contesting the decision by which a contracting authority has chosen a particular proposal to enter into a public contract.

The challenge can occur within the procedure itself, through a preliminary hearing or administrative appeal, or it can reach the administrative courts through a pre-contractual litigation action.

The basis for the claim must be a possible illegality. The mere fact that another proposal was ranked higher does not invalidate the award.

What is an award decision?

According to Article 73 of the Public Contracts Code, the award corresponds to the act by which the competent body accepts the only proposal submitted or chooses one of the existing proposals.

This choice is not free. The awarding entity is bound by the rules it has defined for the procedure and the applicable award criteria.

In the wording applicable to procedures initiated before the entry into force of the October 2026 amendments, the Article 74 of the CCP It stipulates that the awarding of contracts follows the criterion of the most economically advantageous proposal, through the legally established procedures. Decree-Law No. 177/2026 amends this matter for the procedures covered by the new regime.

This means that, before concluding that there was an error in the award, it is necessary to identify the applicable version of the Public Contracts Code, analyze the tender specifications, verify the evaluation model, and reconstruct how each proposal was scored.

Who can challenge an award decision?

In the most common scenario, the challenge is filed by a competitor who participated in the procedure and believes they were harmed by an illegal decision.

The situation becomes more delicate when that competitor's own proposal was excluded. It should not be automatically assumed that an excluded competitor can or cannot challenge the award.

Case law has distinguished, among other situations, between cases where exclusion is still being contested and those where exclusion has become definitive. The Supreme Administrative Court has recognized standing to sue when a competitor simultaneously disputes their exclusion and the admission of the winning bid, but it has also held that a definitively excluded competitor may no longer have standing to independently challenge the award.

Therefore, when an exclusion occurs, it is particularly important to analyze both the exclusion decision and the award, rather than reacting only to the latter.

Under what circumstances can an award be challenged?

The rationale varies widely between tenders. However, there are situations that frequently arise in public procurement litigation.

The winning proposal should have been excluded.

One of the most important questions is whether the winning bid could legally remain in the competition.

Article 146 of the CCP, in conjunction with other provisions of the Code, provides for grounds for exclusion related, among other aspects, to the documents submitted, the formalities of the proposal and the situations foreseen in Article 70.

Missing required documents or information.

The absence of a document does not always automatically lead to the same consequence. It is necessary to understand which document was missing, its function in the procedure, and whether the irregularity could be remedied under the applicable rules.

This distinction is important because the Public Procurement Code (CCP) allows, under certain conditions, the correction of certain formal irregularities. In other situations, the omission affects an essential element of the proposal and may lead to its exclusion.

Failure to comply with the conditions stipulated in the procedural documents.

The tender specifications and program are binding on the contracting authority and the bidders.

If the winning proposal violates a mandatory condition, exceeds a basic parameter, omits a necessary attribute, or presents a solution incompatible with the requirements of the procedure, there may be grounds to question its admissibility.

Existence of legal grounds for excluding the proposal.

The analysis should not be limited to formal documentation. Article 70 of the Public Procurement Code covers different situations related to the content of the proposal, including non-conformities with basic parameters, absence of certain attributes or terms and conditions, impossibility of evaluation, or other legally foreseen situations.

It is in this comparison between the proposal and the procedural documents that many challenges are decided.

Errors in the evaluation or classification of proposals.

Disagreeing with the assigned score is not enough.

There is an important difference between a legitimate technical or evaluative assessment by the jury and an evaluation that does not respect the previously established model.

There may be grounds for contesting the proposal when, for example, elements were used that the model did not allow to be considered, a factor was interpreted in a way that was incompatible with the competition's guidelines, or similar proposals were evaluated according to different criteria.

Incorrect application of the award criteria.

The contracting authority cannot define one evaluation model and then, when choosing the contractor, apply a different logic.

The analysis may involve errors in the application of factors or sub-factors, unequal treatment between competitors, use of criteria not included in the documents, or a classification that lacks support in the presented justification.

In technically complex tenders, this verification may require cross-referencing the program, the terms of reference, the winning bid, the bid of the disadvantaged competitor, and the jury's reports.

Illegal alteration or clarification of a proposal.

The jury may request clarifications on a proposal, but there is a fine line between clarifying what has already been proposed and allowing the competitor to change the proposal after understanding the competitive context.

Administrative case law has repeatedly distinguished between legitimate clarification and the reformulation or supplementation of elements that should have been included in the initial proposal.

If a clarification introduces a new attribute, corrects a relevant material nonconformity, or modifies the competitive content of the proposal, the principle of the inviolability of proposals and equality between competitors may be at stake.

Violation of the rules of procedure or competition guidelines.

There may also be illegalities related to the conduct of the procedure itself, particularly when rules stipulated in the tender specifications or mandatory provisions of the Public Procurement Code are not respected.

The relevance of the procedural defect depends, however, on its concrete impact. Not every procedural irregularity necessarily leads to the annulment of the award.

Lack or insufficiency of justification for the decision.

The competitor must be able to understand the essential reasons why their proposal received a particular rating and another proposal was chosen.

Insufficient justification can hinder the exercise of the right to a defense and, depending on the case, constitute an independent ground for appeal.

Violation of the right to a prior hearing

The preliminary hearing is not a merely symbolic formality. The statement presented by the competitor must be seriously considered before the final decision is made.

If the final report alters the ranking of the proposals or introduces a new exclusion in legally foreseen situations, a new prior hearing may even be necessary.

What should you do before the final award decision?

A well-prepared objection typically begins before the final award.

Analyze the preliminary report and the ranking of the proposals.

The preliminary report allows one to understand the ranking proposed by the jury, the exclusions considered, and the grounds used in the evaluation.

It is at this stage that the results should be compared with the competition's syllabus and the evaluation model.

Exercising the right to a prior hearing

In a public competition, after the preliminary report is prepared, the candidates have a period set by the jury, which cannot be less than five days, to submit their comments in writing.

The preliminary hearing should be used in a concrete way. Instead of simply stating that the scoring is unfair, it is important to identify the clause, evaluation factor, document, or rule that may have been incorrectly applied.

Why should you identify errors during the preliminary hearing?

Because this phase may allow the procedure itself to be corrected before a final award is made.

The final report must consider the observations presented by the competitors and may maintain or modify the previous conclusions. In certain situations, a change in classification or a new exclusion proposal implies a new hearing.

Furthermore, a technically structured pronouncement creates a clear record of the issues that had already been raised with the contracting authority prior to the final decision.

Is it possible to file an administrative appeal against the award?

Yes. The CCP provides for administrative appeal mechanisms in the context of the formation of public contracts.

Is an administrative appeal mandatory?

No. Article 268 of the CCP expressly states that administrative appeals are optional.

Therefore, it should not be assumed that this avenue must be exhausted before resorting to the courts.

What is the deadline for filing an administrative appeal?

The general deadline established in Article 270 of the CCP is... five days from the date of notification, without prejudice to the special situations provided for by law.

This is a very short timeframe. The document review should begin immediately after notification, especially when the intention is to combine administrative channels with potential legal action.

What should be included in the objection?

The interested party must explain the grounds on which the objection is based and may attach any documents they deem relevant.

An effective challenge must identify the contested acts, explain the alleged illegality, and relate it to the specific documents and evidence in the proceedings.

Does an administrative appeal suspend the procedure?

There is no automatic general suspension of all subsequent operations simply because an administrative appeal has been filed.

O regime of administrative guarantees of the CCP It contains specific rules regarding the effects of the challenge and certain actions that cannot be taken while certain challenges are pending.

When the central concern is to prevent the conclusion or execution of the contract, it is especially important not to confuse these effects with the mechanisms inherent in judicial litigation.

How can I legally challenge the awarding of a public tender?

What is a pre-contractual litigation action?

Pre-contractual litigation is a legal process specifically designed for disputes related to the formation of certain public contracts.

O Article 100 of the Code of Procedure in Administrative Courts This includes, among others, public works contracts, concessions, acquisition or leasing of goods, and acquisition of services.

This is a procedural method designed to address the particular urgency of these disputes. A delayed decision can lose much of its usefulness if the contract has already been concluded and executed.

What is the deadline for filing the lawsuit?

The time limit for pre-contractual litigation is, as a rule, a month, pursuant to Article 101 of the CPTA.

This deadline should not be confused with three other deadlines that may arise in the same procedure:

• the five days for administrative appeals as stipulated in the CCP;
• the 10 working days relevant for the automatic suspension effect foreseen in article 103-A of the CPTA;
• The 10-day period, when applicable, prior to the signing of the contract, commonly referred to as the standstill period.

Confusing these deadlines can have serious consequences. A company may still be within the one-month period to challenge the award and, at the same time, have already lost the possibility of benefiting from the automatic suspension effect.

What can be requested from the court?

The requests depend on the facts and the competitor's position in the procedure.

Among other claims, the following may be at stake: the annulment of the award decision, the exclusion of the winning bid, the order compelling the awarding authority to perform the legally required act, and, where legally possible, consequences for the contract subsequently entered into.

There are cases in which a bidder simultaneously requests the annulment of the award, the exclusion of the winning bid, and the awarding of the contract to their own bid. However, the court can only impose a specific solution when the legal framework and the results of the procedure effectively allow it.

Does challenging the award suspend the signing of the contract?

It can be suspended, but not in all cases. This is one of the matters where an immediate analysis after notification of the award can be decisive.

When does an automatic stay of execution occur?

O Article 103-A of the CPTA It provides for an automatic stay of execution for certain actions challenging award decisions.

When the legal requirements are met and the action is brought in 10 working days following notification of the award to all bidders, The effects of the challenged act are automatically suspended, or, if the contract has already been concluded, its execution is also suspended.

This regime does not apply indiscriminately to any award. It is necessary to verify whether the procedure falls under the situations foreseen in Article 103-A, with reference to the rules of the Public Contracts Code (CCP) regarding the suspension period before the contract is signed.

What is left in limbo?

When the automatic effect occurs, the goal is to prevent the judicial process from becoming useless due to the consolidation of a fait accompli.

Depending on when the legal action is initiated, the effects of the award or the execution of the already concluded contract may be suspended.

Can the contracting authority request the lifting of the suspension?

Yes.

The defendant or the opposing parties may request the court to lift the suspension. The judge must then weigh the public and private interests at stake and compare the harm resulting from maintaining the suspension with the harm that may result from lifting it.

The existence of an automatic suspensive effect does not, therefore, mean that the suspension necessarily remains in effect until the final decision in the case.

What is the standstill period?

The standstill is the period during which, in legally covered procedures, the contract cannot be immediately concluded after notification of the award.

Under the provisions of Article 104 of the Public Contracts Code, the awarding of the contract cannot, in certain situations, take place before 10 days have elapsed since the notification of the award to all bidders.

This deadline serves a different purpose than the one-month period for initiating legal action and the 10 business days required for certain situations with automatic suspension.

Is it possible to challenge the award after the contract has been signed?

The signing of the contract does not necessarily mean that all possibilities for recourse have disappeared, but it can make litigation more complex.

Can the contract be annulled?

Depending on the grounds, the procedural stage, and the applicable regime, the invalidity of the formation procedure may have consequences for the contract entered into.

The answer is not automatic. It is necessary to analyze the existing defect, the applicable invalidity regime, and the state of execution of the contract.

Can the scope of the action be extended to include a contract that has since been entered into?

Yes. The CPTA (Code of Administrative Procedure) allows for the expansion of the scope of the proceedings when, during an action relating to the formation of a contract, the contract is subsequently concluded.

This allows the process to be adapted to the evolution of events without ignoring the fact that the legal reality existing at the time of the judgment may be different from that which existed when the action was filed.

What happens when it's no longer possible to recover the contract award?

There are situations in which, despite an illegality having occurred, the execution of the contract has progressed in such a way that it is no longer materially possible to place the competitor in the position they would have been in had the procedure been carried out correctly.

In these cases, questions of compensation may arise. Administrative case law contains examples where, after the illegality of the exclusion or award was demonstrated, the execution of the contract made it impossible to grant the competitor the service initially sought.

This is another reason not to delay the analysis of the award. The practical usefulness of a court decision may diminish as the contract is executed.

What documents should be analyzed to contest an award?

The initial legal analysis should reconstruct the entire procedure. Typically, the following are particularly important:

• The competition program and the terms of reference;
• the proposal presented by the company;
• the preliminary report;
• the pronouncement presented at the preliminary hearing;
• the final report;
• the decision and notification of the award;
• the accessible documents relating to the winning bid;
• clarifications, requests for supplies and respective responses, when applicable.

The record of notifications made through the electronic platform must also be preserved, since the date and content of the notification may be relevant for the calculation of deadlines.

If the tender is related to a public works project, it may be useful to distinguish from the outset between issues concerning the formation of the contract and matters that only arise during the execution of the project. For this context, you can also consult the content on... construction contracts and the area of Tax, Administrative and Environmental Law from CSG Advogados.

How can CSG's lawyers help in challenging an award?

In a public procurement dispute, the first task should be to quickly determine if there is a relevant illegality and what the appropriate course of action is. The goal should not be to initiate proceedings simply because the company came in second place, but to identify if there are legal grounds that could effectively alter the outcome or protect the client's position.

Urgent analysis of the decision and documents of the competition.

CSG Advogados can analyze the procedural documents, reports, proposals, and the final decision, verifying the application of the award criteria, the grounds for admission or exclusion, and the remaining deadlines.

Identifying grounds for contesting the award.

It is important to distinguish between a genuine illegality and a simple disagreement regarding the jury's assessment.

The analysis may focus on the exclusion or admission of proposals, the application of evaluation factors, clarifications and supplements, justification, prior hearing, unequal treatment, or discrepancies between the decision and the procedural documents.

Monitoring of the preliminary hearing and administrative appeal.

When the procedure has not yet reached the final award stage, timely intervention at a preliminary hearing can allow the issue to be discussed before the final decision.

After the award, it may still be necessary to assess the usefulness of an administrative appeal and its connection to judicial deadlines.

Representation in pre-contractual litigation proceedings

When there are grounds for pursuing legal action, the strategy must precisely define the act to be challenged, the claims to be made, and the intended effects on the procedure or contract.

Request for suspension and defense against requests to lift the suspensive effect.

In cases covered by Article 103-A of the CPTA (Code of Administrative Procedure), the timing of the filing of the action may determine the automatic suspensive effect. If the contracting authority or the successful bidder requests the lifting of the suspension, it is necessary to respond to the arguments relating to the interests and damages at stake.

Monitoring of companies awarded contracts whose awards are contested.

The winning company also needs legal defense when another competitor challenges the award.

In this situation, it may be necessary to demonstrate the conformity of the proposal, respond to the grounds for exclusion invoked, defend the legality of the evaluation and, where applicable, request the lifting of the suspensive effect.

If you have received an award decision, a final report, or legal action related to a public tender, the speed of analysis is crucial. CSG Advogados provides legal support to companies in matters of Administrative Law and litigation, and the situation can be analyzed in... in-person or online legal consultation.

Conclusion

Challenging the awarding of a contract in a public tender depends much less on dissatisfaction with the result than on the existence of a specific illegality that can be demonstrated through the documents and records of the procedure.

Winning proposals that should have been excluded, errors in the application of evaluation factors, clarifications that materially alter a proposal, unequal treatment, lack of justification, or violation of prior hearing are examples of issues that may warrant further analysis.

The time factor is equally crucial. Five days for certain administrative appeals, one month for pre-contractual disputes, and 10 working days to benefit from the automatic suspension effect in certain situations are different timeframes with different consequences.

When a contract of significant value is involved, the safest approach is to immediately gather the documentation and determine, before taking any action, which regime applies, what illegality can be argued, and what legal objective can still be achieved.

Bibliographic references

• Public Contracts Code, Article 74, Official Gazette.
• Public Contracts Code, administrative guarantees, Official Gazette.
• Code of Procedure in Administrative Courts, Article 100, Official Gazette.
• Code of Procedure in Administrative Courts, Article 103-A, Official Gazette.
• Supreme Administrative Court, Case No. 0308/22.4BECTB, decision on the supplementation of proposals and standing to sue..
• Supreme Administrative Court, Case No. 0648/20.7BELRA, decision on the standing to sue of a definitively excluded competitor..
• Decree-Law No. 177/2026, of September 4, amending the Public Contracts Code..