Tender

A tender (German: Ausschreibung) is the formal procedure by which a public or private contracting authority announces a need for works, supplies, or services and invites interested companies to submit binding bids. It is the central instrument of public procurement and ensures that taxpayer money is spent transparently, economically, and competitively.

In everyday language, the term "tender" is often used interchangeably with "procurement" or "award procedure." Legally, however, the tender is only one component: it refers to the public invitation to bid, whereas the full process from needs assessment through contract notice to contract award is called the procurement procedure.

The three classic procurement types in Germany

German procurement law recognises three basic procurement types in the national below-threshold range:

• Open Tender (Oeffentliche Ausschreibung): An unlimited number of companies is publicly invited to submit bids. This is the default case.
• Restricted Tender (Beschraenkte Ausschreibung): After a public call for participation, the authority invites a limited number of qualified companies to bid. May also be conducted without a call for participation in narrowly defined exceptional cases.
• Negotiated Award (Freihaendige Vergabe / Verhandlungsvergabe): The authority negotiates contract terms with selected companies. Since UVgO 2017, this procedure is called "Verhandlungsvergabe" for supplies and services; in VOB/A for works, it remains "Freihaendige Vergabe."

The five procedures above EU thresholds

Above the EU thresholds (governed by VgV, GWB Section 119, and EU Directive 2014/24/EU), five procurement procedures exist:

1. Open Procedure (equivalent to the Open Tender)
2. Restricted Procedure (equivalent to the Restricted Tender with call for participation)
3. Negotiated Procedure with or without a call for participation
4. Competitive Dialogue for particularly complex contracts
5. Innovation Partnership for contracts requiring innovative solutions not yet available on the market

Special and simplified forms

In addition to these classic procedures, special forms exist such as direct awards (below fixed value thresholds without competition), direct procurement, framework agreements, and dynamic purchasing systems. Which procurement type applies depends on the contract value, the type of contract, and the type of contracting authority.

With Patterno, you find all current tenders aggregated from more than 180 portals across all industries and procedure types.

German procurement law is two-tiered. Which legal basis applies to a tender depends on whether the estimated contract value reaches the EU thresholds.

Above-threshold range (EU-wide)

Above the EU thresholds, Sections 97 ff. of the GWB (Act against Restraints of Competition, Part 4) apply as the framework, supplemented by:

• VgV (Procurement Regulation) for supply and service contracts of classic contracting authorities
• VOB/A Sections 2 and 3 for construction works
• SektVO (Sector Regulation) for utilities (water, energy, transport)
• KonzVgV (Concession Award Regulation) for service and works concessions
• VSVgV for defence and security contracts

As of 1 January 2026, the thresholds are 5,404,000 euros for works contracts and 216,000 euros for supply and service contracts of classic contracting authorities. For highest federal authorities, a lower threshold of 140,000 euros applies.

Below-threshold range (national)

Below the thresholds, tendering is governed by budgetary law (federal and state budgetary regulations) and:

• UVgO (Below-Threshold Procurement Regulation) for supplies and services, in force in most federal states since 2017
• VOB/A Section 1 for construction works below threshold

VOB/A Section 3: Procurement types for construction works

For below-threshold construction contracts, VOB/A Section 3 explicitly defines the three classic procurement types:

• Section 3(1): Open Tender as the default case
• Section 3(2): Restricted Tender (with or without call for participation)
• Section 3(3): Negotiated Award in specific cases

The choice of procurement type must be justified and documented in the procurement file. An improperly chosen procurement type may lead to the cancellation of the procedure.

A mid-sized municipality in North Rhine-Westphalia plans the construction of a daycare centre with an estimated contract volume of 3.2 million euros gross. Since the contract value is below the EU threshold of 5,404,000 euros for works, a national tender under VOB/A Section 1 is required.

The procurement office decides on an Open Tender under VOB/A Section 3(1) as the statutorily mandated default case. It publishes the contract notice on the NRW procurement marketplace and on bund.de with the following key details:

• CPV code 45214100 (construction of kindergartens)
• Bid submission deadline: 6 weeks
• Eligibility criteria: three comparable reference projects within the last five years, minimum annual turnover of 5 million euros
• Award criteria: 70 percent price, 20 percent construction time, 10 percent sustainability concept

Eight construction companies submit bids. At the bid opening, the bids are formally opened and recorded. After examining eligibility and economic viability, the municipality awards the contract to the bidder with the most economically advantageous offer.

Had the municipality been required to tender the same contract EU-wide (for example, with an estimated volume of 6 million euros), the Open Procedure under VgV/VOB/A Section 2 would have been mandatory, including publication in the EU Official Journal (TED) and a minimum bid period of 35 days.

When choosing and conducting the right type of tender, the same issues arise repeatedly in practice:

• Incorrect estimation of contract value: Artificially calculating the contract value below the EU threshold to justify a national tender is a clear violation of Section 3 VgV. The consequence can be a successful review procedure and cancellation of the proceedings.
• Improper choice of procurement type: A Restricted Tender or Negotiated Award is only permissible in the narrowly defined cases of VOB/A Section 3(2) and (3). Bypassing the Open Tender as the default case without meeting an exception risks complaints to the Procurement Chamber.
• Unclear eligibility and award criteria: Bidders can only meet criteria that are clearly formulated. Vague requirements regularly lead to bidder questions and grounds for complaint.
• Violation of the obligation to divide into lots: Contracts must generally be divided into specialist and partial lots to allow access for small and medium-sized enterprises. A blanket bundling without justification violates Section 97(4) GWB.
• Improper or missing publication: An Open Tender without proper publication is formally invalid. In the above-threshold range, publication in the EU Official Journal (TED) is mandatory.

Those who want to conduct or participate in tenders legally and efficiently should follow these principles:

• Careful threshold calculation from the start: Estimate the contract value realistically and document the calculation in the procurement file. Account for options, extensions, and repeat contracts.
• Justify and document the procurement type: Whether Open, Restricted, or Negotiated Tender is chosen, the justification belongs in the procurement file. For exceptions to the default case, the burden of proof is high.
• Clearly separate eligibility and award criteria: Eligibility criteria relate to the company (experience, solvency, staff), award criteria to the bid (price, quality, delivery time). Mixing them is a violation of procurement law.
• Set realistic deadlines: Below-threshold rules are less strict, but a bid period that is too short prevents qualified offers. Above threshold, minimum deadlines apply (35 days in the Open Procedure, reducible with electronic submission).
• Market dialogue before the tender: A market consultation (Section 28 VgV) helps to formulate realistic requirements without compromising subsequent competition.
• Use tender management software: With an AI-driven search tool like Patterno, bidders find suitable tenders across all portals instead of searching manually on 180+ platforms.