Open Procedure

The open procedure (German: Offenes Verfahren) is the most transparent and most frequently used form of public procurement above the EU thresholds. It is regulated in § 15 VgV for supply and service contracts and in § 3a EU VOB/A for construction works. Under § 119 (2) GWB, the open procedure stands, together with the restricted procedure, as one of the two default procurement procedures. Other procedure types such as the negotiated procedure, the competitive dialogue or the innovation partnership require an explicit justification.

The defining feature of the open procedure is the unlimited number of potential bidders: after publication of the contract notice on TED and the national procurement platforms, any interested company may submit a bid directly. There is no preliminary participation competition, no pre-selection and no negotiation. Suitability assessment, formal review and evaluation all take place after bid submission in one continuous procedural step.

Core characteristics

• Single-stage: Unlike the restricted procedure or the negotiated procedure with participation competition, the open procedure runs in only one phase. Notice, bid submission, evaluation and award form a single continuous line.
• Open bidder pool: Any company meeting the suitability criteria may submit a bid. The number of bidders cannot be limited.
• No negotiation: After bid submission, negotiations over price, scope or contractual terms are prohibited. Only formal clarification of ambiguous content is permitted.
• Strict formality: Form, content and deadlines of bids are tightly regulated; deviations regularly lead to exclusion.
• Electronic handling: Since 18 October 2018, e-procurement has been mandatory for open procedures above the thresholds (§ 9 VgV).

Distinction from the Öffentliche Ausschreibung

The open procedure must be distinguished from the so-called Öffentliche Ausschreibung (public tender) under UVgO or VOB/A Section 1: this is the functional equivalent below the EU thresholds. The structure and core principles are similar, but the deadlines are shorter and the legal protection is materially different, in the below-threshold segment, the public procurement chamber (Vergabekammer) is not competent.

Typical use case

The open procedure is used when the contract object can be clearly described and there are no special complexity or confidentiality requirements. Classic examples include framework contracts for IT services, catering tenders, cleaning contracts, print services, postal services and many construction contracts under VOB/A-EU. For bidders, it is the most accessible procedure, anyone meeting the suitability requirements can participate without prior hurdles.

The open procedure is determined by EU law and implemented in two central German provisions.

EU legal basis. EU Procurement Directive 2014/24/EU designates the open procedure in Article 27 as one of the two default procedure types alongside the restricted procedure. The directive prescribes minimum time limits and stipulates that any company may submit a bid without pre-selection. Member States may adopt stricter rules, but not more lenient ones.

National basis: GWB. At statutory level, § 119 (2) GWB anchors the priority of the open and restricted procedures. Both procedure types are available to the contracting authority on a free-choice basis, other types may only be used under the narrower conditions of §§ 14 et seq. VgV. This freedom of choice between open and restricted procedure is a peculiarity of German law; in many other EU Member States, the open procedure is the unrestricted default.

Procedural rules in the VgV. § 15 VgV concretises the open procedure for supply and service contracts. It regulates in particular:

• the minimum bid period of 35 days from dispatch of the contract notice to the EU Publications Office,
• the reduction options: 30 days for electronic submission, 15 days following a prior information notice (with additional conditions) and further reductions in cases of urgency,
• the obligation to make tender documents available simultaneously and uniformly to all interested parties from publication of the notice,
• the handling of bidder questions under § 12a VgV, answers must be made available anonymised to all interested parties.

Procedural rules in VOB/A-EU. § 3a EU para. 1 VOB/A governs the open procedure for construction works above the thresholds largely in parallel to the VgV. Deadlines are identical (35 days standard, analogous reductions).

Suitability and evaluation. Under § 122 GWB, suitability criteria (professional ability, economic capacity, reliability) must be named in advance in the notice. In the open procedure, suitability is assessed in parallel with bid evaluation, often in the so-called reverse procedure under § 42 (3) VgV, where bids are first economically evaluated and only the best bidder's suitability is then verified.

Legal protection. Bidders may challenge breaches of the rules governing the open procedure before the public procurement chamber. As a rule, this requires a timely complaint (Rüge) under § 160 (3) GWB. Before award, the contracting authority must inform unsuccessful bidders under § 134 GWB and observe the ten-day standstill period.

A state capital tenders a four-year framework contract for IT maintenance of municipal administration with an estimated volume of 1.8 million euros Europe-wide. Since the estimated contract value far exceeds the EU threshold for services (216,000 euros from 1 January 2026), the VgV applies.

Choice of procedure. The contract object, standardised IT maintenance with clearly definable service levels, is not complex and does not require negotiations. The procurement office therefore chooses the open procedure under § 15 VgV; justification of any other procedure type is unnecessary.

Process:

1. Preparation. The procurement office prepares the tender documents: specifications with SLA requirements, suitability criteria (references, minimum turnover, qualified staff), award criteria (60% price, 40% quality) and draft contract.
2. Notice. Publication of the contract notice in eForms format on the state procurement platform and on TED. The bid period is set at 35 days; tender documents are available free of charge from publication.
3. Bidder questions. Several bidders submit questions via the platform. The answers are provided anonymously to all interested parties.
4. Bid submission. Fourteen companies submit electronically signed bids on time.
5. Opening and evaluation. After bid opening, bids are reviewed in four stages: formal check, suitability, reasonableness and economic evaluation against the award criteria.
6. Information and award. Before award, unsuccessful bidders are informed under § 134 GWB with a ten-day standstill period. After expiry, the contract is awarded to the most economically advantageous bid.

A mid-sized IT systems integrator using Patterno HIT for market monitoring receives the notice in its daily briefing on the day of publication. The AI-driven search profile filters precisely such framework contracts in the IT services field, without the sales team having to manually search TED or state platforms.

Although the open procedure is considered the simplest procurement procedure, both contracting authorities and bidders regularly fall into typical traps:

• Narrowing the bidder pool via suitability criteria. Suitability criteria are only admissible if proportionate to the contract object (§ 122 GWB). Excessive turnover requirements, arbitrary reference thresholds or blanket certification requirements are regularly overturned in review proceedings.
• Subsequent changes to tender documents. Material changes after publication violate the principle of equal treatment and the transparency principle. Corrections are only permitted through official corrigenda and may trigger deadline extensions.
• Breach of the no-negotiation rule. Real negotiations over price or scope are excluded in the open procedure. Only clarification discussions about ambiguous bid content are permitted. Re-negotiation risks invalidation of the award.
• Mishandling of variants (Nebenangebote). Variants are only permissible if expressly admitted in the notice. If they are evaluated without authorisation, the procedure is open to challenge.
• Deadline breaches. The 35-day minimum period begins with the dispatch of the notice to the EU, not its publication. Tight calculation can result in an insufficient bid period and consequent cancellation.
• Premature choice of another procedure. Negotiated procedures or competitive dialogue are sometimes chosen out of convenience, although their conditions are not met. § 14 VgV must be interpreted narrowly, when in doubt, the open procedure is the safe procedure.
• Underestimated number of bidders. Attractive contracts can attract 20, 30 or more bids. Insufficient evaluation resources lead to time pressure and formal errors.

For contracting authorities and bidders, the following strategies have proven effective in running or successfully participating in open procedures:

• Clear specification. Since no negotiation is permitted in the open procedure, an unambiguous, complete specification is the single most important success factor. Vague requirements generate many bidder questions, wide bid dispersion and disputes in evaluation.
• Proportionate suitability criteria. Minimum turnover, references and qualified staff must match the contract object. Rule of thumb: minimum turnover no higher than twice the estimated annual contract value, references from the last three years (five for construction).
• Use the reverse procedure. § 42 (3) VgV permits first evaluating bids economically and only then checking the best bidder's suitability. With many bidders, this saves significant evaluation effort.
• Structure the notice cleanly. A clear contract notice with the correct CPV code, precise specification and traceable award criteria attracts qualified bidders and reduces questions.
• Plan and reserve capacity. Authorities should realistically plan evaluation effort and build buffers for questions, clarification and post-submission requests. Tight schedules create pressure and errors.
• Early market monitoring for bidders. Discovering open procedures only at TED publication leaves 35 days, often too short for internal approvals, calculation and bid preparation. Patterno HIT aggregates more than 180 procurement platforms and uses AI to filter precisely the procedures that match a company's business profile.
• Strategic use of prior information notices. Authorities that publish annual prior information notices can reduce the bid period to 15 days and gain planning certainty. For bidders, these prior information notices are an important early warning system.
• Documentation in the procurement file. All key decisions, choice of procedure, criteria, evaluation steps, must be documented in the procurement memorandum. In disputes, this is the central line of defence.