Certificates in public tenders: what “or equivalent” does and does not mean

Where a certificate can appear in the documents

A certificate can appear in three places in the tender documents. The best known is the selection criterion, but there are others. Where it sits decides what happens if you do not have it. So find that out first, before you decide whether to bid.

• Selection criterionNo certificate, no bidThe certificate is a minimum requirement for your company. Miss it and your bid is set aside. According to the Expert Committee, such a requirement belongs in the contract notice, even if it sits in the specifications (advice 314).
• Contract performance conditionNeeded to deliverThe certificate is a condition for performing the contract. If the buyer did not set it as a selection criterion, a missing certificate cannot lead to exclusion, according to the Committee (advice 93-95).
• Award criterionIt earns pointsBidders with the certificate or the requested level score better. The EU Court of Justice ruled that a buyer may not award points for a specific label without naming the underlying criteria (C-368/10).

PIANOo, the Dutch public procurement expertise centre, points out that a buyer may not use the qualifications and certificates of your company or staff as both a selection criterion and an award criterion. If you see that in the documents, it is worth a question.

When a buyer may require a certificate

A Dutch public buyer may only set requirements that are reasonably proportionate to the subject of the contract (article 1.10 of the Dutch Public Procurement Act 2012, the Aanbestedingswet). The Dutch Proportionality Guide works this out. Its rule 3.5 B says a buyer only sets selection criteria that relate to actual risks of the contract or to the competences needed to perform it.

So a certificate is not automatically too heavy, nor automatically fine. It depends on the contract. The Expert Committee found ISO 9001 as a selection criterion for a framework agreement for engineering services proportionate in principle, but noted that the buyer had to make clear which risks it covered (advice 93-95). It did find an ISAE 3402 type II report, an assurance report on a service provider’s internal controls, too heavy for a contract to supply only cloud infrastructure: the supplier has no control over the applications running on it (advice 314).

That other buyers do not ask for a certificate does not make the requirement disproportionate. In a case about a € 22 million public lighting project, the court accepted ISO 9001 because the municipality had explained that the contract required lasting quality assurance (Limburg District Court, June 2026).

What the rules say about “or equivalent”

The EU public procurement directive covers this in article 62. If a buyer requires a certificate from an independent body that you meet quality assurance standards, it refers to schemes based on European standards, certified by accredited bodies. It must recognise equivalent certificates from bodies established in other Member States. The same goes for environmental management (paragraph 2): the buyer refers to EMAS or to other environmental management standards based on European or international standards, such as ISO 14001.

Evidence other than a certificate is an exception. It only applies if you could not obtain the certificate within the set time limits for reasons not attributable to you, and only if you prove yourself that your measures meet the standards. In the Netherlands, this is set out for quality assurance in article 2.96 of the Aanbestedingswet.

Until July 2016 the Dutch rule was broader. A buyer then had to accept other evidence of equivalent measures, such as a quality manual (article 50(2) of the former Bao decree). Older advice and articles still assume that. So check the date when you read about equivalence.

What can count as equivalent

“Equivalent” is first of all about the certificate, not about your own way of working. A certificate against the same standard, issued by another accredited body, including one from another EU country, must be accepted. A different certificate covering roughly the same ground is not automatically equivalent. The Expert Committee found ISO 27001 not equivalent to an ISAE 3402 type II report (advice 314), and the CO2 Performance Ladder, a Dutch carbon management certification, not a lighter alternative to ISO 14001 (advice 93-95).

According to a Dutch court, your own manual or process description is not automatically equivalent to an ISO certificate. Certification includes an external audit that is repeated every year, and that is where the buyer’s assurance comes from (Gelderland District Court, September 2022).

The documents can allow more room than the law. In the case behind advice 93-95, the tender documents said that a bidder without ISO 9001 could instead show an internal quality system with external review. So read exactly what the instructions and the clarification answers mean by equivalent. Writing only “or equivalent” without explanation is allowed in itself (advice 314).

• Burden of proofYou show itIf you rely on equivalence, you have to prove it. The buyer does not have to work it out for you.
• ReasonsThe buyer explains a refusalIf the buyer rejects your evidence, it has to explain why it is not equivalent. Just saying it is not equivalent was too little, according to the Committee (advice 314).
• TimingReady in timeOften you must meet the requirement at the moment you submit. A certificate that only arrives later does not count then.

When the buyer may refuse other evidence

The exception for other evidence is narrow, and Dutch courts read it strictly. You have to show that you could not obtain the certificate in time for a reason that is not down to you. If you knew about the requirement and did not start certification straight away, you cannot rely on it.

If it is down to you, the buyer may not even assess your other evidence on its merits. According to the court, that would distort the level playing field between bidders (Oost-Brabant District Court, December 2022). Nor does the buyer have to check whether your manual might be equivalent after all (Limburg District Court, June 2026).

Expected certification in the near future does not help if you only mention it after the provisional award. In the Limburg case, the municipality withdrew its intended award when it found the certificate was missing. The bidder only mentioned its expected certification after that.

Rulings you should know

What to do if you do not have the certificate

1. 1Read where and by when it is requiredSelection criterion, performance condition or award criterion? Do you need it at submission, at award or at the start of the contract? That decides how much time you have and what is at stake.
2. 2Ask in the clarification roundAsk what the buyer accepts as equivalent, whether the requirement can become a performance condition, or whether a later deadline is possible. Explain which risk the requirement covers and how you manage it too. How to build such a question is in the clarification round.
3. 3Start certification straight awayRequest a quote from a certification body and record when you started. A letter of intent after submission is too late. If you want to rely on the exception later, you must be able to show you did what you could.
4. 4Gather evidence with external reviewIf the certificate will not arrive in time for a reason that is not down to you, have your system reviewed externally and gather audit reports and the certification body’s planning. A manual alone is not enough, according to the courts.
5. 5Rely on another companyIf a partner or subcontractor has the certificate, you can rely on that company or bid together. More in consortia and subcontracting. Note: the third party must hold the certificate itself.
6. 6Decide honestlyIf none of these routes works before the deadline, no-go is often the best choice. A bid that fails on the certificate costs you all the hours you put in.

With award criteria, what counts is what you can show

If a certificate is an award criterion rather than a requirement, you are not out if you lack it. You just get fewer or no points. What other evidence earns you then depends on what the instructions say.

The CO2 Performance Ladder shows how that works. Its guide for buyers advises an award advantage per ambition level, for example 1% of the contract value at level 1 and 5% at level 4. The evidence must be at a level comparable to the criterion, mixed evidence is not possible, and in a consortium the partner with the lowest level sets the level. If you do not reach the promised level during the contract, the guide advises a penalty larger than the advantage you got when you bid.

Evidence the evaluator does not see as equivalent earns nothing. If the instructions do not say how equivalent evidence is scored, ask in the clarification round. Then you know beforehand what it is worth, and not only at the award decision.

You do not get a certificate in the last week. With every contract notice, look at the certificates first.