Commercial Contracting Party in Procurement Law 2026

Definition: A commercial contracting party (gewerblicher Auftraggeber) is a natural or legal person under private law that awards contracts for supplies, works or services and does not meet the criteria of a public contracting authority or utility under procurement law.

Last updated: January 2026 · Legal basis: BVergG 2018, §§ 98–100 GWB, Directive 2014/24/EU Art. 2

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What is a commercial contracting party?

The term "commercial contracting party" primarily serves as a delimiting concept in procurement law: it denotes contracting parties that are not subject to public procurement law because they do not meet the statutory criteria of a public contracting authority. Commercial contracting parties are typically private-law undertakings active in commercial competition, not subject to State control and not performing tasks in the general interest.

Distinction from public contracting authority

Procurement law binds only "public contracting authorities" within the meaning of the statutory definition – private undertakings that do not meet these criteria are commercial contracting parties without procurement obligations.

Public contracting authorities under Art. 2(1)(1) of Directive 2014/24/EU are:

1. State bodies: federal, regional and local government
2. Bodies governed by public law: legal persons that fulfil tasks in the general interest, are not of an industrial or commercial character, and are predominantly financed or controlled by the State
3. Associations: associations of such bodies

A private construction company that procures contracts on its own account is a commercial contracting party. A privately organised company that is, however, wholly state-owned and performs general-interest services may by contrast qualify as a body governed by public law.

Borderline cases and mixed entities

In practice, borderline cases are frequent, especially in mixed-economy undertakings with State participation. The criteria of a body governed by public law are decisive: general interest, non-commercial activity, and State financing or control (cumulative CJEU criteria). The CJEU has repeatedly held that the term is to be construed broadly (e.g. CJEU Case C-380/98 – University of Cambridge).

Voluntary procurement procedures

Commercial contracting parties may voluntarily apply procurement law principles to ensure value for money and compliance, but are not legally obliged to do so. Many groups have their own procurement policies prescribing elements such as competition, transparency and equal treatment – without the statutory procurement framework applying.

FAQ

Can a commercial contracting party be required to issue a tender? Only if it qualifies as a public contracting authority or utility. Purely private undertakings are not subject to any statutory tendering obligation.

What happens if an entity wrongly treats itself as a commercial contracting party when it is in fact a public contracting authority? Contracts awarded without the legally required procurement procedure are challengeable as inadmissible de facto awards. The competent review body can declare the contract void.

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