Availability Declaration in Procurement Law 2026

Availability declaration: a declaration by a company that capacities will be made available to a bidder (capacity loan) in a procurement procedure.

Definition: An availability declaration is a written statement by a third-party company (providing capacity) confirming that it will actually make available to the bidder the capacities, resources or qualifications it needs to perform the contract, thereby forming the basis for the capacity loan under procurement law.

Last updated: January 2026 · Legal basis: § 47 VgV, Article 63 of Directive 2014/24/EU, BVergG 2018

What is an availability declaration?

The availability declaration is the central document of the capacity loan: a bidder that does not, on its own, meet certain suitability requirements can rely on the capacities of a third-party company – which must document its willingness to make those capacities available by way of an availability declaration. The capacity loan instrument is governed by Article 63 of Directive 2014/24/EU and implemented nationally in § 47 VgV and the BVergG 2018.

The availability declaration creates a contractual commitment between the bidder and the third-party company: the third-party company undertakes to actually make the declared capacities available if the contract is awarded.

Content of the availability declaration

A legally binding availability declaration must contain specific information about which capacities, resources or qualifications the third-party company is making available and how this is to be done. Generic declarations without specific content are increasingly regarded as inadequate by contracting authorities and Procurement Chambers. The declaration should at least include:

Identification of the company providing the capacity
Type and scope of the capacities being made available
Period of availability
Information on the type of involvement (subcontracting, secondment of personnel etc.)

Limits of the capacity loan

Not all suitability requirements can be met through a capacity loan and availability declaration. Where criteria are directly tied to the person of the bidder (e.g. specific professional authorisations, the company's own relevant experience), a capacity loan is excluded or restricted. In works contracts and service contracts where the company providing the capacity performs essential parts of the service, the contracting authority can require that company to perform those services itself.

Liability of the company providing the capacity

The company providing the capacity is jointly and severally liable to the contracting authority together with the bidder, in so far as the loaned capacities are necessary to perform the contract. This strengthens the binding nature of the availability declaration and protects the contracting authority against the risk that promised capacities will not be available when the contract is performed.

Related terms

FAQ

Does the availability declaration have to be submitted with the bid? As a rule, yes. Some contracting authorities accept it being submitted later as part of a subsequent request for documents, but the declaration should in principle be submitted together with the bid.

Can a bidder submit availability declarations from several companies? Yes. A bidder can rely on several companies providing capacity, as long as the total capacities provided meet the required suitability requirements.

What happens if the company providing the capacity is unavailable after award? The contracting authority can require that the company providing the capacity be replaced. If the contractor fails to comply, this can be treated as a breach of contract.

Last updated: January 2026 All information without guarantee. For legally binding advice, please consult a law firm specialised in procurement law.