Types of Award Procedures in Public Procurement Law

Below and above the thresholds, several types of procurement proceedings are available to the public sector. Below the thresholds, public tenders procedures still have the priority.

According to § 119 GWB above the thresholds, there are the open procedures, the restricted procedures, the negotiated procedures as well as the competitive dialogue and the innovation partnership.

For awards above the EU threshold, § 119 (2) GWB provides an equal ranking of open and not open proceedings. It is important to consider however, that pursuant § 119 (4) GWB, open proceedings require a preliminary qualification competition. The freedom of choice between the open and non-open upper threshold procedure should take into account the principles of transparency and competition.

The procedures above and below the thresholds differ slightly, so that they can be delineate together in the following lines.

Open procedures (public tender below the threshold)

According to § 119 (3) GWB, the open procedure are procedures whereby an unlimited number of undertakings is publicly invited to submit a tender.

This means that every interested company can apply for the awarding of the contract. It is a one-step process in which companies submit their proof of suitability and an offer at the same time.

Restricted Procedures (public tender below the threshold)

This type of procedures is regulated in § 119 (4) GWB; these are procedures whereby a public invitation to participate is made and a limited number of undertakings from among the candidates is invited to submit a tender. It is a two-step process. The companies first prove their suitability by submitting the certificate of suitability. From this circle, the public sector requests at least five companies to tender, so that the competition for the provision of the service is limited to a particular group of bidders.

Negotiated procedures (direct award below the threshold)

According to  § 119 (5) GWB, negotiated procedures are procedures whereby the contracting entity consultants undertaking of its choice, with or without any prior public invitation to participate, to negotiate the terms of the contract with one or more of them. Unlike the open and restricted procedures, there is no ban on negotiation for these sorts of proceedings.  The design of this procedure is at discretion of the public authority, which, however has to comply with the principle of public procurement law.

Competitive dialog (only above the threshold)

The competitive dialogue is a procedure for the award of particularly complex contracts by public contracting entities within the meaning of § 98 no. 1 to 3, so far as they are not active in the fields of drinking water or energy supply or transport, and § 98 no. 5. In this procedure an invitation to participate is made and selected undertakings are invited to negotiate all the details of the contract.

Here there is an invitation to participate, followed by negotiations with selected companies on all details of the order. The tenders will be based on jointly developed specifications, as the contracting authority will not be able to describe the service when it launches the procedure.

The Innovation Partnership (only above the threshold)

According to § 119 (7) GWB, in an innovation partnership (only for Europe-wide procurement procedures), the contracting authority negotiates the initial and follow-on offers of the competition in several phases with the selected companies.