Types of procedure above the EU thresholds

Public procurement law provides various procedures for the award of a contract. If the estimated contract value exceeds the EU thresholds, a total of 5 types of procurement procedures are available pursuant to Section 119 GWB, Section 3 EU VOB/A, Section 14 VgV.

Open procedure

The open procedure represents the standard case of the EU-wide procurement procedure. The invitation to submit a bid is addressed to an unlimited number of companies. Any interested company may submit a bid. Negotiations, in particular regarding changes to the bids or prices, are not permitted, Section 15 (5) sentence 2 VgV. The contracting authority may choose between the open procedure and the restricted procedure with competitive bidding.

Restricted procedure

The contracting authority is free to choose between the open procedure and the restricted procedure with a call for competition. The restricted procedure must always be preceded by a public call for tenders. This is a two-stage procurement procedure: To initiate the upstream call for competition, the contracting authority first publishes an EU-wide notice and invites participation. It then checks the suitability of the bidders and finally invites an unlimited or predefined number of suitable bidders to submit a bid. The prohibition on negotiation in Section 15 (5) sentence 2 VgV also applies here.

Negotiated procedure

In a negotiated procedure, the contracting authority negotiates with the bidders on the bids they have submitted. The entire content of the bid may be negotiated, with the exception of the minimum requirements and award criteria specified by the contracting authority in the tender documents. The negotiated procedure is generally conducted with a call for tenders. The contracting authority may choose the negotiated procedure with a call for competition if, for example, a previously conducted open or restricted procedure did not result in any proper tenders or if a contract cannot be awarded without prior negotiations due to its complexity, Section 14 (3) VgV or Section 3a EU (32) VOB/A 2nd subsection. If a previous open or restricted procedure has not yet resulted in any suitable requests to participate or if there is a particular urgency, the preliminary competition may be waived, Section 14 (4) VgV or Section 3a EU (3) VOB/A 2nd clause. The negotiated procedure with a call for competition is not a standard type of procedure; the special requirements for such an procurement procedure must be met.

Competitive dialog

This procedure is useful when the contracting authority is not yet able to assess how it can best meet its procurement needs. The contracting authority describes its needs and requirements for the service to be procured as precisely as possible in the contract notice or award documents. After conducting a competitive bidding process and reviewing the suitability of the applicants, the contracting authority opens a dialogue with the selected companies to discuss all aspects of the procurement. The aim is to identify and determine the means by which its needs and requirements can best be met. At the end of the dialogue phase, the contracting authority invites the companies to submit their final offer. The contracting authority determines the most economical offer. It may re-negotiate with the best bidder with the aim of confirming financial commitments or other conditions included in the bid.

The competitive dialogue procedure is only applicable if the special requirements of Section 14 (3) VgV are met. However, if these prerequisites are met, the contracting authority may choose between the negotiated procedure with competitive bidding and the competitive dialog.

Innovation partnership

The innovation partnership is a special procurement procedure for the development of new, innovative products and services when the existing need cannot be satisfied by solutions already available on the market.