Public procurement regulation and law in Germany

Section 2 VOB/A 
(applicable for construction services, see Question 2)

Open procedure (Offenes Verfahren):

• The contracting authority may choose the open procedure or the restricted procedure with a prior call for competition.

(§ 3a EU (1) VOB/A)

Restricted procedure with a prior call for competition (nicht offenes Verfahren mit Teilnahmewettbewerb):

• The contracting authority may choose the open procedure or the restricted procedure with a prior call for competition.

(§ 3a EU (1) VOB/A)

Negotiated procedure with a prior call for competition (Verhandlungsverfahren mit Teilnahmewettbewerb) is permissible:

• If the needs of the contracting authority cannot be met without adapting readily available solutions;
• If the contract includes design or innovative solutions;
• If the contract cannot be awarded without prior negotiations because of specific circumstances related to the nature, the complexity or the legal and financial makeup of the contract or because of the risks attaching to them.
• If the technical specifications cannot be established with sufficient precision by the contracting authority with reference to a standard, European Technical Assessment, common technical specification or technical reference within the meaning of points 2 to 5, Annex VII of Directive 2014/24/EU.
• If an open or a restricted procedure has been annulled because only irregular or unacceptable tenders were submitted.

(§ 3a EU (2) VOB/A)

Negotiated procedure without a call for competition (Verhandlungsverfahren ohne Teilnahmewettbewerb) is permissible:

• If in response to an open or restricted procedure:
• only irregular or unacceptable tenders were submitted, and
• the negotiated procedure includes all of, and only, the tenderers from the prior procedure that have the professional qualification and the capability and were not excluded due to § 6e EU VOB/A;
• If in response to an open or restricted procedure:
• no tenders or requests to participate were submitted, or
• only tenders or requests to participate were submitted from tenderers that do not have the professional qualification or the capability, or which were excluded due to § 6e EU VOB/A, or
• only tenders were submitted that do not satisfy the conditions of the procurement documents;
• provided that the initial procurement documents are not substantially altered;
• If the works, supplies or services can be supplied only by a particular economic operator because:
• the aim of the procurement is the creation or acquisition of a unique work of art or artistic performance, or
• competition is absent for technical reasons, or
• the protection of exclusive rights, including intellectual property rights;
• provided that no reasonable alternative or substitute exists and the absence of competition is not the result of an artificial narrowing down of the parameters of the procurement;
• If it is strictly necessary for reasons of extreme urgency brought about by events unforeseeable by the contracting authority which prevent the authority from complying with the time limits for the open or restricted procedures or competitive procedures with negotiation; or
• If similar works are repeated and the works are entrusted to the economic operator by the same contracting authority that awarded the original contract, provided that those works are conform with a basic project for which the original contract was awarded pursuant to a procedure in accordance with § 3a EU VOB/A.

(§ 3a EU (3) VOB/A).

Competitive dialogue (Wettbewerblicher Dialog) is permissible:

• In all cases where a negotiated procedure with a prior call for competition may be applied.

(§ 3a EU (4) VOB/A).

Innovation partnership (Innovationspartnerschaft) is permissible:

• If the aim is the development of innovative works as well as the subsequent purchase of the resulting works, provided that the needs of the contracting authority cannot be satisfied by readily available works on the market.

(§ 3a EU (5) VOB/A).

VgV 
(applicable for all services/supplies except services/supplies within the transport, water and energy sectors or concessions, see Question 2)

Open and Restricted procedure (Offenes und nicht offenes Verfahren)

• The contracting authority may choose the open procedure or the restricted procedure with a prior call for competition.

(§ 14 (2) VgV)

Negotiated procedure with a prior call for competition (Verhandlungsverfahren mit Teilnahmewettbewerb) is permissible:

• If the needs of the contracting authority cannot be met without adapting readily available solutions;
• If the contract includes design or innovative solutions;
• If the contract cannot be awarded without prior negotiations because of specific circumstances related to the nature, the complexity or the legal and financial makeup of the contract or because of the risks attaching to them.
• If the technical specifications cannot be established with sufficient precision by the contracting authority with reference to a standard, European Technical Assessment, common technical specification or technical reference within the meaning of points 2 to 5 Annex 1of VgV.
• If an open or a restricted procedure has been annulled because only irregular or unacceptable tenders were submitted.

(§ 14 (3) VgV)

Negotiated procedure without a call for competition (Verhandlungsverfahren ohne Teilnahmewettbewerb) is permissible:

• If, in response to an open or restricted procedure, no or no suitable tenders, or no suitable requests to participate were submitted, provided that the initial conditions of the contract are not substantially altered.
• If the contract can be supplied only by a particular economic operator because:
• a unique work of art or a unique artistic performance will be created or acquired, provided that no reasonable alternative or substitute exists and the absence of competition is not the result of an artificial narrowing down of the parameters of the procurement, or
• competition is absent for technical reasons, provided that no reasonable alternative or substitute exists and the absence of competition is not the result of an artificial narrowing down of the parameters of the procurement, or
• of the protection of exclusive rights, including industrial property rights.
• If it is strictly necessary for reasons of extreme urgency brought about by events unforeseeable by the contracting authority which prevent the authority from complying with the time limits for the open or restricted procedures or competitive procedures with negotiation.
• If the products involved are manufactured purely for the purpose of research, experimentation, study or development; however, contracts awarded pursuant to this point must not include quantity production to establish commercial viability or to recover research and development costs.
• If additional deliveries are purchased by the original supplier which are intended either as a partial replacement of supplies or installations or as the extension of existing supplies or installations and a change of supplier would oblige the contracting authority to acquire supplies with different technical characteristics which would result in incompatibility or disproportionate technical difficulties in operation and maintenance; the duration of such contracts as well as that of recurrent contracts shall not, as a general rule, exceed three years.
• If the supplies are quoted and purchased on a commodity market.
• If there are particularly advantageous terms for the purchase of supplies or services, from either a supplier which is definitively winding up its business activities, or the liquidator in an insolvency procedure, an arrangement with creditors, or a similar procedure under national laws or regulations.
• If the contract concerned follows a design contest in the meaning of § 69 VgV and the contract is to be awarded, under the rules provided for in the design contest, to the winner or one of the winners of the design contest; in the latter case, all winners must be invited to participate in the negotiations.
• If similar services are to be repeated and the services are entrusted to the economic operator by the same contracting authority that awarded the original contract, provided that those works conform with a basic project for which the original contract was awarded pursuant to a procurement procedure but not within a negotiated procedure without a call for competition.

(§ 14 (4), (5) VgV)

Competitive dialogue (Wettbewerblicher Dialog) is permissible:

• In all cases were a negotiated procedure with a prior call for competition may be applied.

(§ 14 (3) VgV).

Social and other specific services (in the meaning of § 130 GWB):

• The contracting authority may choose the open procedure or the restricted procedure with a prior call for competition as well as the negotiated procedure with a prior call for competition, the competitive dialogue and the innovation partnership. Negotiated procedure without a call for competition may only be applied under the circumstances set out in § 14 (4) VgV.

(§ 65 (1) VgV)

Architectural and engineering services:

• Competitive procedure with a prior call for competition or competitive dialogue may be applied as a matter of course.

(§ 74 VgV)

SektVO 
(applicable for services/supplies within the transport, water and energy sectors, see Question 2)

• The contracting authority may choose the open procedure, the restricted procedure and the negotiated procedure with a prior call for competition.

(§ 13 (1) SektVO)

• The negotiated procedure without a call for competition is permissible:
  • If no or no suitable tenders, or no or no suitable requests to participate were submitted in response to a procedure with a prior call for competition, provided that the initial conditions of the contract are not substantially altered.
  • If the contract is purely for the purpose of research, experiment, study or development, and not for the purpose of securing a profit or of recovering research and development costs, and insofar as the award of such contract does not prejudice the competitive award of subsequent contracts which do seek those ends, in particular.
  • If the contract can only be supplied by a particular economic operator because:
    • a unique work of art or a unique artistic performance will be created or acquired, provided that no reasonable alternative or substitute exists and the absence of competition is not the result of an artificial narrowing down of the parameters of the procurement,
    • competition is absent for technical reasons, provided that no reasonable alternative or substitute exists and the absence of competition is not the result of an artificial narrowing down of the parameters of the procurement,
    • of the protection of exclusive rights, including intellectual property rights.
  • If it is strictly necessary for reasons of extreme urgency brought about by events unforeseeable by the contracting authority which prevent the authority from complying with the time limits for the open or restricted procedures, or negotiated procedures with prior call for competition. The circumstances invoked to justify extreme urgency shall not in any event be attributable to the contracting entity.
  • In case of supply contracts for additional deliveries by the original supplier which are intended either as a partial replacement of supplies or installations or as the extension of existing supplies or installations, and a change of supplier would oblige the contracting entity to acquire supplies having different technical characteristics which would result in incompatibility or disproportionate technical difficulties in operation and maintenance.
  • If new works or services consisting in the repetition of similar works or services are assigned to the contractor to which the same contracting authorities awarded an earlier contract, provided that such works or services conform to a basic project which was awarded in a procurement procedure but not within a comparative procedure with negotiation without a call for competition.
  • If the supplies are quoted and purchased on a commodity market.
  • For bargain purchases, if it is possible to procure supplies by taking advantage of a particularly advantageous opportunity available for a very short time at a price considerably lower than normal market prices.
  • If the purchase of supplies or services can be made under particularly advantageous conditions from either a supplier which is definitively winding up its business activities or the liquidator in an insolvency procedure, an arrangement with creditors or a similar procedure under national laws or regulations.
  • If the service contract concerned follows a design contest in the meaning of § 60 SektVO and is to be awarded, under the rules provided for in the design contest, to the winner or to one of the winners of that contest; in the latter case, all the winners shall be invited to participate in the negotiations.

(§ 13 (2) SektVO)

The competitive dialogue can be applied if it happens in accordance with the conditions set up in the SektVO for that kind of procedure.

(§§ 13 (1), § 17 SektVO)

The innovation partnership can be chosen if the aim is the development of an innovative service as well as the subsequent purchase of the resulting service, provided that the needs of the contracting authority cannot be satisfied by works readily available on the market.

(§§ 13 (1), 18 (1) SektVO)

KonzVgV 
(applicable for concessions, see Question 2)

• No specified procurement procedures have to be chosen. The contracting authority can arrange the award procedure freely but in accordance with the KonzVgV.

(§ 12 (1) KonzVgV)

VSVgV 
(applicable for contracts involving defence and security aspects, see Question 2)

• In general, contracts are awarded in a restricted procedure with a prior call for competition or in a negotiated procedure with a prior call for competition.

(§ 11 (1) VSVgV)

• In justified exceptional cases – the concrete conditions are not set out in detail – the contracting authority may award contracts in a negotiated procedure without a call for competition or in a competitive dialogue.

(§ 11 (1) VSVgV)

Section 1 VOB/A 
(applicable for construction services, see Question 2)

Open procedure (Öffentliche Ausschreibung)

• The contracting authority has to choose the open procedure as far as the peculiarity of the contract or specific circumstances do not justify another procedure.

(§ 3a (1) Section 1 VOB/A)

Restricted procedure (beschränkte Ausschreibung) is permissible:

• If the contract value does not exceed the following thresholds:
  • Extension work, landscape construction, road equipment: up to EUR 50,000,
  • Underground construction engineering, traffic route construction and civil engineering: up to EUR 150,000,
  • Remaining work: up to EUR 100,000;
• If the award did not have an acceptable result; or
• If an open procedure is inappropriate for other reasons.

(§ 3a (2) Section 1 VOB/A)

Restricted procedure with a prior call for competition (beschränkte Ausschreibung mit Teilnahmewettbewerb) is permissible:

• If the contractual performance can be adequately provided only by a limited number of companies.
• If the preparation of the offer involves disproportionate efforts.

(§ 3a (3) Section 1 VOB/A)

There are no regulations regarding a negotiated procedure in Section 1; instead, a direct award (Freihändige Vergabe) is permissible:

• If the open procedure or the restricted procedure is inexpedient, in particular if:
  • the services can be supplied for specific reasons only by a particular economic operator,
  • the services are necessary for reasons of urgency,
  • the services cannot be defined so clearly and exhaustively that sufficiently comparable tenders can be expected,
  • an open or restricted procedure has been annulled and an acceptable result is not to be expected within a new procedure,
  • it is necessary due to reasons of secrecy, or
  • a small service cannot be separated from a larger one without any disadvantage.
• However, the principles of competition are applicable and, if relevant for the European market, a negotiated procedure with a prior call for competition is required.
• If the contract value does not exceed the threshold of EUR 10,000 (excluding VAT).

(§ 3a (4) Section 1 VOB/A)

Section 1 VOL/A 
(applicable for supplies and services, see Question 2)

Open procedure (Öffentliche Ausschreibung)

• The contracting authority has to choose the open procedure if another procedure is not permissible.

(§ 3 (2) VOL/A)

Restricted procedure with a prior call for competition (beschränkte Ausschreibung mit Teilnahmewettbewerb) is permissible:

• If the service can be adequately provided only by a limited number of companies.
• If the open procedure is inexpedient for other reasons.

(§ 3 (3) VOL/A)

Restricted procedure without a call for competition (beschränkte Ausschreibung ohne Teilnahmewettbewerb) is permissible:

• If an open procedure has not yielded an economically advantageous result.
• If an open procedure involves disproportionate efforts for the contracting authority or the tenderers.

(§ 3 (4) VOL/A)

There are no regulations regarding a negotiated procedure in Section 1; instead, a direct award (Freihändige Vergabe) is permissible:

• If a public or restricted procedure has been annulled and a repetition holds no prospect of an economically advantageous result.
• If subsequent to development services, contracts of adequate scope and for adequate periods must be awarded to enterprises involved in the development.
• If the supplies of goods or the provision of services are needed for the performance of specialist scientific-technical tasks in research, development and studies that are not intended for the purpose of maintaining the general operations and infrastructure of a contracting authority agency.
• For repeat contracts of minor value following on an existing contract when no higher price is expected than for the initial performance and the repeat contracts altogether do not exceed 20 per cent of the value of the initial contract.
• If replacement or accessory parts for machinery and equipment are to be obtained from the initial supplier and these parts cannot be procured at adequate quality or on economically advantageous terms and conditions from other enterprises.
• If necessary for reasons of secrecy.
• If due to circumstances that could not have been foreseen by the contracting authorities, the service is of special urgency and the reasons for such urgency cannot be ascribed to the conduct of the contracting authorities.
• If the type and scope of services cannot be described clearly and exhaustively enough to be able to expect adequately comparable tenders.
• If it is permissible under executive regulations of a federal minister or a federal state minister.
• If contracts are to be awarded solely to workshops for disabled persons.
• If contracts are to be awarded solely to penal establishments.
• If the services can be supplied for specific reasons only by a particular economic operator.

However, the principles of competition are applicable and if relevant for the European market a negotiated procedure with a prior call for competition is required.

• If the contract value does not exceed the threshold of EUR 500 (excluding VAT).

(§ 3 (5, 6) VOL/A)

A direct purchase (Direktkauf) is permissible:

• If the contract value does not exceed the threshold of EUR 500 (excluding VAT).

(§ 3 (6) Section 1 VOL/A)