The gate you didn’t know you could argue with

You open a tender. Minimum annual turnover: €5,000,000. Your company turns over €1.2M.

You close the tender.

That reaction is understandable, common, and — depending on the contract — possibly wrong. Not because you should bid anyway and hope. Because that requirement may not be lawful, and because even where it is, there are legitimate routes past it that a great many small firms have never used.

Selection criteria are the gate before the game. They decide who gets read at all, and they exclude far more companies than bad writing ever will. But they are not arbitrary, and they are not immovable. EU procurement law places real constraints on what a buyer may demand — and it provides mechanisms, in the tender process itself, for challenging and satisfying those demands.

Most bidders treat the gate as weather. It is closer to a negotiation.

The constraint most SMEs have never heard of

Under the 2014 EU procurement directives, a contracting authority may set a minimum turnover requirement — but not an unlimited one.

The rule: minimum yearly turnover generally may not exceed twice the estimated contract value. Buyers may go above it only where they can justify it — genuinely exceptional risks attached to the nature of the works, supplies or services — and they must state those reasons.

So the arithmetic runs the other way from the one most bidders do. Not "do we have €5M turnover?" but "what is this contract worth, and is a €5M turnover demand even permitted?"

If the contract is estimated at €800,000, a €5M turnover requirement is more than six times the contract value. That is not obviously lawful. It may be justifiable — but the buyer has to justify it, and the justification has to be stated.

The same proportionality logic governs everything else at this stage. Selection criteria must be related to and proportionate to the subject-matter of the contract. A buyer cannot require whatever they feel like. They cannot demand a certification that has nothing to do with the work. They cannot require reference projects so large that only the incumbent could have delivered them, without a defensible reason.

This is not obscure law. It is the central design of the 2014 reforms, which were driven in significant part by the recognition that disproportionate selection criteria were locking SMEs out of public markets.

And yet, in our experience of reading tender documents, disproportionate criteria appear regularly — and go unchallenged, because the companies they exclude read them, sigh, and move on.

The channel you're not using

Every EU tender has a formal question-and-answer process. In the Netherlands it produces a Nota van Inlichtingen — a published note of clarifications. In other jurisdictions it goes by other names, but the mechanism is the same.

It exists so bidders can ask about ambiguities, errors and inconsistencies before submitting. It is a live channel to the buyer, with rules: your question is answered, and the answer is published to every bidder.

That last part is why people don't use it well. Bidders worry that asking reveals their weakness, or hands an advantage to competitors. So they don't ask.

But consider what a well-framed question about a disproportionate criterion actually does:

• It puts the buyer on notice that the requirement may not be proportionate.
• It requires them to either justify it in writing or change it.
• If they change it, the criterion changes for everyone — including for you.

Buyers do sometimes amend criteria in response to clarification questions. Not always. Not even often. But the cost of asking is one carefully-worded paragraph, and the cost of not asking is that you don't bid at all.

The framing matters. This is not a complaint, and it should not read like a threat of litigation. It is a question:

"The tender requires a minimum annual turnover of €5,000,000. The contract is estimated at €800,000. Could the contracting authority clarify the basis on which this requirement is considered proportionate to the subject-matter of the contract?"

Polite. Specific. Cites the principle. Invites either a justification or a revision. And every other bidder sees the answer, which means you are not asking for a favour — you are asking a legitimate procedural question in the open.

Some buyers will justify it and move on. Some will realise, quietly, that they copied the criterion from the last tender and never thought about it. You will not know which until you ask.

You can borrow the capacity you don't have

Here is the mechanism that is genuinely under-used, and it is written into EU law.

A bidder may rely on the capacities of other entities to meet selection criteria — regardless of the legal nature of the link between them. Not just consortium partners. Subcontractors. Parent companies. Other firms entirely.

If a tender requires financial standing you don't have, you may be able to rely on another entity's. If it requires technical capacity, or a reference in a sector where you have none, the same applies — provided that entity will actually perform the relevant part of the work.

That proviso is real and important: you cannot rent a reference from a firm that will have nothing to do with the contract. For educational and professional qualifications, and for relevant experience, the entity whose capacity you rely on must actually do the work for which that capacity is needed. And for financial standing, buyers may require joint liability.

But within those bounds, the mechanism is powerful and it is exactly what it looks like: a legal route past a gate that was not designed for a company your size.

The literature on consortium and joint bidding supports this consistently — partnering lets smaller firms meet turnover, reference and capacity requirements they cannot meet alone. Prior experience of joint bidding predicts more joint bids and more wins. Firms with better networks bid more, and win more.

And yet it remains under-used, for reasons that are more psychological than legal. Partnering means sharing the contract, coordinating with someone else's team, and admitting you couldn't do it alone. All of which is uncomfortable, and none of which is as uncomfortable as not being allowed to bid.

References: the quiet exclusion

Turnover requirements are visible. Reference requirements do the quiet work.

A typical Dutch formulation: "één referentie per kerncompetentie, niet ouder dan drie jaar" — one reference per core competency, no older than three years. The tender then names its core competencies, and there may be five of them.

Read that carefully. It's not asking whether you're capable. It's asking whether you have already done this specific thing, recently, and can prove it. Which means:

• A firm that pivoted into this market two years ago is excluded, however good.
• A firm whose best reference is four years old is excluded, however relevant.
• A firm strong in four of the five competencies is excluded, entirely.

Reference requirements are, structurally, an incumbency filter. The academic literature is aware of this: past-performance and experience criteria can improve the quality of selection, but they risk entrenching incumbents and shutting out new entrants unless carefully designed.

Which is precisely why proportionality applies here too. A reference requirement that demands projects far larger than the contract, or in a narrower sector than the work actually requires, is challengeable on the same grounds as an excessive turnover threshold.

And it is exactly the kind of criterion that borrowed capacity solves — a partner who has the reference, and who will do that part of the work.

What to actually do

1. Do the arithmetic before you do the despair. Find the estimated contract value. Compare it to the turnover requirement. If the requirement is more than twice the contract value, note it — that is a threshold with a legal basis, not a vibe.
2. Read the criteria against the work, not against yourself. Is each requirement genuinely related to the subject-matter? A certification that has nothing to do with the deliverable, a reference in an adjacent sector, a capacity far exceeding what the contract needs — these are the shapes of disproportionality.
3. Ask the question. One paragraph in the clarification round. Polite, specific, citing proportionality. Worst case: they justify it, and you've lost fifteen minutes. Best case: it changes, for everyone.
4. Map what you're missing, then find who has it. For every criterion you fail, ask whether a partner, subcontractor or consortium member could supply it — and whether they would genuinely do that part of the work. This is legal, it is intended, and it is under-used.
5. Find the criteria before you find them the hard way. The requirements that exclude you are usually not in the notice. They are in the tender's own documents — the Aanbestedingsleidraad, the annexes, the selection appendix — which means a company can spend two weeks writing before discovering, on page 34, that it needed a certification it doesn't hold.

The honest caveat

We should be straight about the limits of what's known here.

EU law caps turnover requirements at twice the contract value. That is the rule, and it is checkable.

Whether the rule has measurably increased SME participation has, as far as we can find, never been established. The reform was designed to help; the corpus of empirical work does not isolate its causal effect. So we can tell you what the law says. We cannot tell you that invoking it usually works.

Similarly, nobody has measured how often clarification questions actually change a criterion. The mechanism exists, buyers sometimes use it to amend, and we have seen it happen. But the frequency is unmeasured, and anyone who quotes you a number for it is inventing one.

What we can say is this: the cost of asking is a paragraph. The cost of assuming the gate is immovable is every tender you don't enter.

Most companies never test it. That is not because testing fails. It is because nobody told them they were allowed.

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FindWell reads the tender's own documents — the Aanbestedingsleidraad and its annexes — and shows you the stated selection criteria, quoted with the section they came from, checked against your company's profile. So you find the gate in the first ten minutes rather than the third week — and have time to do something about it. We don't write the clarification question for you; that's a judgment call, and it's yours.

Sources

• Directive 2014/24/EU on public procurement, Articles 58 (selection criteria and proportionality), 60 (means of proof) and 63 (reliance on the capacities of other entities).
• Reijonen, H., Saastamoinen, J. & Tammi, T. (2021). The importance of SMEs' network partners in consortium bidding for public sector tenders. International Journal of Public Sector Management.
• Olander, S. & Norinder, H. (2024). Using past performance as an award criterion in EU public procurement.
• Flynn, A., McKevitt, D. & Davis, P. (2015). The impact of size on small and medium-sized enterprise public sector tendering. International Small Business Journal.
• European Commission SME needs analyses and evaluations of the 2014 procurement reforms.

This is not legal advice. Procurement rules are transposed differently in each Member State and are revised periodically. Where a criterion looks disproportionate and the contract matters to you, take advice.