Commercial Tender in Procurement Law 2026

Definition: A commercial tender (gewerbliche Ausschreibung) refers to tender procedures conducted by private companies or privately organised contracting parties that do not qualify as public contracting authorities under procurement law and are therefore not bound by statutory procurement obligations.

Last updated: January 2026 · Legal basis: BVergG 2018, GWB, Directive 2014/24/EU

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What is a commercial tender?

A commercial tender is not a legal term of public procurement law but describes the practice of private companies of soliciting supplies, works or services through a formalised tender procedure without being bound by the strict rules of public procurement law. The term serves principally to distinguish such tenders from public tenders within the meaning of the BVergG or GWB.

Private contracting parties may voluntarily adopt elements of procurement law – e.g. tender documents, deadlines, evaluation criteria – but are not obliged to do so. They can freely negotiate bids, exclude bidders without giving reasons and set criteria at their own discretion.

Distinction from public procurement law

The decisive factor for the applicability of public procurement law is the status of the contracting party, not the form of the tender. Under Art. 2(1)(1) of Directive 2014/24/EU, public contracting authorities include the State, regional and local authorities, and bodies governed by public law. Undertakings that are predominantly privately financed and active in competition generally fall outside procurement law.

Special case: utilities (e.g. private energy suppliers, public transport operators) are subject to the Utilities Directive 2014/25/EU for contracts within their utility activities.

Practical significance

Even without a procurement obligation, many large private undertakings and groups follow a structured procurement process resembling a tender in order to ensure value for money and transparency. These voluntary procedures are often referred to as "commercial tenders". They follow internal company policies (compliance, ESG requirements, procurement guidelines) and are governed by general contract law (ABGB, BGB), not by procurement law.

Legal protection in commercial tenders

Since public procurement law does not apply, there is no review application before a procurement review chamber in commercial tenders. Bidders can only rely on general civil law claims, e.g. damages for culpa in contrahendo where the contracting party has created reasonable reliance and broken off negotiations without objective reason. This is difficult to prove in individual cases.

FAQ

Are public undertakings (e.g. municipal utilities) subject to procurement obligations? This depends on whether the undertaking qualifies as a body governed by public law or as a utility. Many municipal undertakings are at least subject to the Utilities Directive.

Can a bidder compel a contracting party to conduct a commercial tender under procurement law? No. Only where the entity qualifies as a contracting authority does a statutory procurement obligation arise. For purely private contracting parties, there is no statutory entitlement to a procurement procedure.

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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.