Award Without Invitation to Tender 2026 – Direct Award and Exceptions

Award without invitation to tender: permissible exceptions to the duty to invite tenders in procurement law. Direct award, negotiated procedure without notice.

Definition: An award without invitation to tender is the engagement of a company by a public contracting authority without a formal tender procedure. It is permissible only in narrowly defined statutory exceptional cases, and otherwise constitutes a serious breach of procurement law.

Last updated: January 2026 · Legal basis: § 14 VgV, Article 32 of Directive 2014/24/EU, BVergG 2018, UVgO

What is an award without invitation to tender?

An award without invitation to tender takes place where a public contracting authority awards a contract without first having conducted a formal procurement procedure with notice and competition. Procurement law in principle requires public contracting authorities to award contracts in competition. The award without invitation to tender is therefore the exception and requires a specific statutory basis.

In practice, the award without invitation to tender appears in various forms: as a direct award (below certain value thresholds), as a negotiated procedure without competitive participation (in the above-threshold range) or as a direct negotiated award (in the sub-threshold range).

Permissible exceptions

Article 32 of Directive 2014/24/EU and § 14 VgV exhaustively set out the conditions under which a negotiated procedure without competitive participation – i.e. an award without public tender – is permissible. These exceptions are to be interpreted narrowly:

Urgency: Extreme, compelling reasons not attributable to the contracting authority (e.g. natural disasters)
Technical exclusivity: Only a specific supplier can provide the service for technical or copyright reasons
Unsuccessful prior competition: An open procedure produced no suitable bid
Research and development contracts: Under certain conditions
Additional contracts: Additional supplies or services from the original contractor (limited)

Direct award in the sub-threshold range

Below certain national value thresholds, the direct award – i.e. engagement without competition – is permitted. In Germany, the UVgO allows direct award of supply and service contracts up to an estimated contract value of EUR 1,000 (net). Austria provides for higher thresholds in the BVergG 2018. The precise limits vary depending on the subject matter of the contract and national law.

Legal consequences of impermissible awards

An unlawful award without invitation to tender – the so-called de facto award – is the most serious breach of procurement law and can lead to the ineffectiveness of the concluded contract. Bidders that have been passed over can assert ineffectiveness before the Procurement Chamber or the competent court. In addition, the contracting authority faces damages claims and state-aid consequences where EU funding is involved.

Documentation duty

Where a contracting authority decides on an award without invitation to tender, it must carefully document the reasons in the procurement file. The documentation duty ensures traceability and enables review by supervisory bodies and procurement review organs.

Related terms

FAQ

What is a de facto award? A de facto award is the unlawful direct award of a contract without the required procurement procedure. It can lead to the nullity of the contract.

Is an award on grounds of urgency without invitation to tender always permissible? No. The urgency must not be attributable to the contracting authority and must not arise from poor planning. The exception is to be interpreted narrowly.

Which national value thresholds apply to direct award in Austria? The BVergG 2018 provides for value thresholds for direct awards in the sub-threshold range, which vary depending on the type of contract. For supply and service contracts, the limit is EUR 100,000 (net).

Can contracting authorities call off from framework agreements without a new tender? Yes, where the framework agreement itself was properly tendered and the call-offs do not materially change the agreed conditions.

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