Clarification Negotiations in Public Procurement Law 2026

Definition: Clarification negotiations are oral discussions between the public contracting authority and a bidder that serve exclusively to clarify unclear tender content and must not effect any substantive amendment or improvement of the tender.

Last updated: January 2026 · Legal status: BVergG 2018 § 123, VOB/A § 15(3), VgV § 15

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What are clarification negotiations?

Clarification negotiations are the oral counterpart to the written request for clarification and enable the contracting authority to remove ambiguities in a tender in direct conversation with the bidder. They are expressly provided for in procurement law, but are subject to strict substantive limits: the purpose of the clarification negotiation is exclusively the investigation of facts, not the optimisation or renegotiation of tenders.

Clarification negotiations may in particular be conducted on the following occasions:

• Ambiguities in the calculation or unit prices
• Contradictions between different parts of the tender
• Need for explanation regarding technical solution concepts
• Clarification of mixed calculations or strikingly low tender prices

Distinction from Negotiations

Clarification negotiations are to be strictly separated from negotiations in the negotiated procedure. While negotiations in the negotiated procedure are aimed at the substantive adjustment of tenders, clarification negotiations may only serve to explain existing tender content. Conflating the two instruments is unlawful under procurement law.

In concrete terms, this means: in a clarification negotiation, the bidder may not reduce prices, supplement missing services, or add documents that were not submitted on time (unless the law permits later submission).

Documentation Obligation

The contracting authority is obliged to document the content of clarification negotiations fully and transparently in the procurement record. Only by means of complete documentation can it be demonstrated subsequently – for example in review proceedings – that the clarification did not exceed the limits of what is permissible.

FAQ

Must clarification negotiations be recorded in writing? Yes. Content, outcome and participants of the clarification negotiation must be recorded in the procurement record. In practice, a record signed by both sides is recommended.

Can a bidder refuse a clarification negotiation? The bidder may decline to participate, but in doing so risks that ambiguities in its tender cannot be resolved and the tender is excluded.

May the contracting authority conduct clarification negotiations only with individual bidders? Yes, clarification negotiations are case-specific. The contracting authority conducts them only with those bidders whose tenders show a need for clarification. This does not infringe the principle of equal treatment, as long as no substantive improvements are made.

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