What is a Negotiated Procedure without Competition?
The Negotiated Procedure without Competition is an exceptional procurement procedure where the contracting authority can negotiate directly with one or more companies without prior public notice.
Prerequisites
This procedure is only permissible in strictly limited exceptional cases:
- Unsuccessful prior procedures: When open or restricted procedures yielded no suitable bids
- Monopoly position: Only one specific company can perform the service (technical, artistic reasons, or IP rights)
- Extreme urgency: Unforeseeable events make compliance with regular deadlines impossible
- Repeat services: Similar services within three years of the original contract
- Advantageous purchasing: Particularly favorable opportunities during liquidation or insolvency
Process
- The authority documents the exceptional reason
- Written justification why competitive procedure is not possible
- Direct approach to one or more suitable companies
- Negotiation on services, conditions, and price
- Contract award
- Ex-post publication of the award
Risks and Oversight
- Exception grounds are interpreted very narrowly by review bodies and courts
- The authority bears the burden of proof for the prerequisites
- Other companies can challenge the procedure before the procurement review body
- Improper application can result in the contract being declared ineffective
Practical Relevance
These procedures are difficult for bidders to identify since they are not publicly announced. This makes networking and proactive positioning with contracting authorities all the more important.