Abnormally Low Tenders in Public Procurement 2026

Abnormally low tenders in public procurement: definition, indicators, the contracting authority's duty to investigate, and consequences for unusually low offers.

Definition: Abnormally low tenders are offers in public procurement procedures whose price is so far below market levels that proper contract performance at that price — without losses in quality, circumvention of statutory requirements or state subsidies — does not appear realistic.

Last updated: January 2026 · Legal basis: Art. 69 Directive 2014/24/EU, § 60 VgV, § 16d VOB/A, § 125 BVergG 2018

What are abnormally low tenders?

Abnormally low tenders threaten both economically sound and high-quality contract performance and pose a serious challenge to public procurement. They arise from various motives: calculation errors, strategic underpricing with planned variation-order optimisation, wage and social dumping, undeclared work, or impermissible state aid. In every case the abnormally low tender is problematic, because it either comes at the expense of service quality or crowds out competitors who calculate fairly.

Indicators

There is no fixed threshold for an "abnormally low tender"; the contracting authority must take an overall view. Indicators that a tender may not be appropriately priced include:

A significant shortfall against the contracting authority's cost estimate (more than 20 %)
A substantial gap to the next cheapest tender (more than 20 %)
Individual items with manifestly implausible prices (e.g. zero items)
An overall price below the discernible material costs
Hourly rates that are atypically low compared with the market

Duty to investigate

Where there are indicators of an abnormally low tender, the contracting authority is required to call on the tenderer to provide written clarification. Exclusion without first giving an opportunity to explain is unlawful (Art. 69(1) Directive 2014/24/EU). The tenderer must have the opportunity to explain and justify its price, for example through:

Particularly favourable delivery conditions
Innovative production methods
Synergies with other contracts
Exceptionally low overheads

Exclusion in case of demonstrated underpricing

Where the tenderer cannot sufficiently demonstrate the appropriateness of its price, the contracting authority is entitled to exclude the tender. Special rules apply to abnormally low tenders based on state aid: here exclusion may be mandatory (Art. 69(4) Directive 2014/24/EU).

Underpricing and minimum wage

A frequent pattern in abnormally low tenders is the circumvention of statutory minimum-wage provisions or collective agreements. Contracting authorities have the right and the duty to take compliance with wage and working conditions into account when assessing appropriateness.

FAQ

Must the contracting authority necessarily exclude the cheapest tender if it considers it abnormally low? No — the tenderer must first be invited to provide clarification. Only if the clarification fails to dispel the doubts is exclusion permissible.

Can a tenderer challenge the exclusion of its tender on grounds of suspected underpricing? Yes, in review proceedings. The contracting authority must produce the documentation of the appropriateness assessment.

Does a procurement procedure protect against loss of quality through abnormally low tenders? Procurement law provides the duty to investigate as a protective instrument. Ultimately, however, the contracting authority can only protect itself as effectively as the specifications and award criteria allow.

Last updated: January 2026 All information is provided without warranty. For legally binding advice, please consult a law firm specialising in public procurement law.