Win your tender appeal, pay your own lawyer: amendments to the Public Procurement Law go before MPs on Monday

Picture a company that has proven a state institution ran a tender unlawfully. The State Commission for Public Procurement Appeals rules in its favour and the procedure is annulled. Normally the institution that got it wrong would cover the costs. Under the amendments to the Public Procurement Law that MPs are due to vote on on Monday, 26 October, that won't be the case. The company that won will pay its own lawyer.

The key is Article 16 of the government's proposal, which amends Article 166 of the current law. If an appeal is upheld, the contracting authority will reimburse only the administrative fee and the fee for running the procedure. On legal representation, the proposal is brief: "If a party engages a representative in the appeal procedure before the State Commission, it shall bear the costs of the representative at its own expense."

A pricier appeal, a cheaper mistake

The package also makes the appeal itself more expensive. Fees for running an appeal procedure, according to the government's explanatory note, rise from the current 50 to 200 euros to 150 to 600 euros, depending on the type of procedure. The aim, the sponsor says, is fewer unfounded appeals and more efficient legal protection. The package also brings higher thresholds for purchases without a formal tender, wider use of the electronic marketplace and more frequent use of best price-quality ratio. All of it is wrapped under the EU's Reform Agenda and Growth Plan.

The Bar Association has already sent written objections to the institutions. In its view, the change is an extra financial burden on businesses, discourages legal remedies and could weaken oversight of whether tenders are lawful. It also warns of a new wave of court cases for damages, which would bring extra costs for the budget itself. Some lawyers go further and argue the amendment runs against the Constitution and several laws, from the Law on the Legal Profession to the Law on Obligations.

Who wins and who loses

The logic is simple. A company that has to pay both a higher fee and a lawyer out of its own pocket, even when it is right, will think hard about whether to appeal at all. Fewer appeals mean fewer irregularities caught before the contract is signed. And that means more freedom for the small circle of officials who decide who gets a tender. The contracting authority, meanwhile, loses even the minimal penalty it used to pay when it got things wrong.

Lawyers who spoke anonymously point to "Skopje 2014" as an example of what happens when big public spending has no real oversight: the consequences only show once the money is gone. And the European Commission's 2026 Rule of Law Report lists public procurement as an area at high risk of corruption. Only 20 percent of surveyed companies rate the independence of the appeals body as very or fairly good, compared with 37 percent last year.

So trust in appeals is falling, and the state's answer is to make appealing more expensive. If this is reform on the European model, why do the people who make mistakes in tenders gain the most from it?