Types of procedure below the EU thresholds

Public procurement law provides for various types of procedure for awarding a contract. If the estimated contract value is below the EU thresholds, the contracting authority has the choice, e.g. according to Section 8 of the Sub-Threshold Contracting Regulations or Section 3 ff. VOB/A 1st section, the contracting authority can choose between the following procedures:

Public invitation to tender

The public invitation to tender largely corresponds to the open procedure at European level. In this procedure, the contracting authority sends out an invitation to tender to an unlimited number of companies. This means that any interested company can submit a bid. There is no negotiation of the bids; in fact, this would be inadmissible under Section 9 (2) sentence 2 UVgO.

Restricted invitation to tender

If a restricted invitation to tender with a competition is issued, the contracting authority first publicly invites an unlimited number of companies to submit applications to participate. On the basis of these applications, the suitability of the applicants is examined and finally an unlimited or previously determined number of suitable bidders is invited to submit a bid.

In the case of a restricted invitation to tender without a competitive bidding process - which is only permissible if special conditions are met (e.g. a certain low contract value) - the contracting authority directly invites several - in principle at least three - companies to submit a bid. This procedure may therefore only be carried out under certain conditions because it is not as transparent as the public invitation to tender or the restricted invitation to tender with a competition.

The prohibition of negotiations pursuant to Section 9 (2) sentence 2 UVgO also applies to restricted invitations to tender (with or without a competition).

Negotiated procedure/ direct award

In the case of a negotiated award, the entire content of the bid may be negotiated in accordance with Section 12 (4) of the UVgO, with the exception of the minimum requirements and award criteria. If the contracting authority intends to conclude the negotiations, it shall inform the bidders and set a uniform deadline for the submission of the final bids, which may now no longer be negotiated. The negotiated award may also be conducted with or without a competitive bidding process.

In the case of the direct award of construction services, a "simplified procedure" applies in accordance with Section 3 No. 3 VOB/A 1st paragraph, although the law does not regulate a specific procedural sequence. Only sporadically are certain regulations to be found, e.g. in Section 6b (5) Sentence 1 VOB/A 1st Section, according to which the suitability of the companies must be checked before the invitation to tender is issued.

The negotiated award or private contract award are intended by the legislator as special cases and should only apply in exceptional cases. However, Section 8 (4) UVgO lists 17 of these possible exceptions and Section 3 (3) sentence 1 nos. 1 - 6 and sentence 2 VOB/A 1st section lists a total of 7. As a result, these two forms of award in the sub-threshold sector probably represent the most frequently selected types of procedure.