Balancing of Interests in Public Procurement Law 2026

Definition: Balancing of interests in public procurement law refers to the assessment carried out by review bodies and contracting authorities in which the competing interests of all parties – in particular the contracting authority, the bidders, and the general public – are weighed against each other in order to take proportionate decisions under procurement law.

Last updated: January 2026 · Legal basis: BVergG 2018; GWB §§ 168, 169; Directive 89/665/EEC

---

What is the Balancing of Interests?

The balancing of interests is a central legal principle in deciding on review applications and other procurement disputes, ensuring the proportionality of state intervention. Where a bidder challenges an ongoing tender procedure or applies for interim relief, the review body must weigh whether the requested measures (e.g. an injunction against award) are appropriate in relation to the affected interests.

The balancing of interests typically arises where:

• A bidder lodges a review application and seeks suspension of the procedure
• The review body decides on the imposition of interim measures
• Contracting authorities take discretionary decisions in the tender procedure

Interests to Be Weighed

The balancing of interests routinely involves three spheres of interest: the bidder's interest, the contracting authority's and administrative interest, and the public interest.

Bidder interests: The interest of the applicant bidder in compliance with public procurement law and in the chance of winning the contract carries significant weight. Procurement errors should not become irreparable through hasty contract award.

Contracting authority and administrative interests: Contracting authorities have a legitimate interest in the swift conclusion of the procedure. Delays can impair public projects (e.g. infrastructure measures, hospital provision) and lead to additional costs.

Public interest: The general public has an interest in the maintenance of public services, the use of taxpayers' money, and compliance with procurement law as such.

Relevance in the Review Procedure

In review procedures the balancing of interests is anchored in law and determines whether interim measures are granted or maintained. Under § 169 GWB, the Public Procurement Tribunal can provisionally prohibit the award; in doing so it must conduct a comprehensive balancing of interests. The same applies to the Austrian Federal Procurement Office and the state-level procurement review bodies under the BVergG 2018.

Criteria for the balancing of interests include:

• Severity of the alleged procurement breach
• Probability that the applicant bidder will prevail
• Extent of the threatened damage to bidder and contracting authority
• Urgency of performance
• Reversibility of measures already taken

Related Terms

• Review Procedure
• Conflict of Interest
• Tender Procedure

FAQ

Who carries out the balancing of interests? The balancing of interests is carried out by the competent procurement review bodies – in Germany the Public Procurement Tribunal, in Austria the Federal Procurement Office or the state-level procurement review authorities.

Can the balancing of interests result in a procurement error remaining uncorrected? Yes. Where the public interest in an immediate contract award prevails (e.g. for urgently needed infrastructure), a provisional injunction may be refused. The bidder may then be left with a claim for damages.

Can the outcome of the balancing of interests be challenged? Decisions of the procurement review bodies on interim measures can generally be reviewed by the ordinary courts or higher administrative courts.

---

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