Confidentiality in Procurement Law 2026

Definition: Confidentiality in procurement law refers to the protection of confidential information of bidders and contracting authorities during a procurement procedure; it stands in tension with the procurement law principle of transparency and is clearly delimited by legislation and case law.

Last updated: January 2026 · Legal basis: § 5 VgV; § 41 BVergG 2018; Art. 21 Directive 2014/24/EU

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The concept of confidentiality in procurement law

Confidentiality and transparency form a fundamental tension in procurement law: while transparency ensures fair competition, confidentiality protects the legitimate commercial interests of bidders and the security-relevant interests of the contracting authority. Both principles must be brought into an appropriate balance in each procurement procedure.

EU procurement law (Art. 21 Directive 2014/24/EU) obliges Member States to ensure that contracting authorities do not disclose information forwarded to them by economic operators which they have designated as confidential, including technical or trade secrets and the confidential aspects of tenders.

Information worthy of protection

Not all information in a procurement procedure enjoys confidentiality protection; only information whose disclosure could cause significant commercial harm or distort competition is worthy of protection.

Typically protectable items include:

• Cost calculations and pricing structures
• Technical design concepts and engineering documents
• Trade secrets and manufacturing processes
• Security-relevant technical details (particularly in defence and security procurement)

By contrast, basic procedural data (number of bidders, total bid sum at the opening session) or information that the contracting authority must communicate when notifying the award decision are not protectable.

Confidentiality versus file inspection

After a procurement procedure has closed, unsuccessful bidders are generally entitled to information on the reasons for their non-selection, but not to full inspection of competing bids. When stating the reasons for the award decision (§ 134 GWB information duty; § 264 BVergG 2018), the contracting authority must carefully balance the duty of transparency against the protection of trade secrets.

In review proceedings, procurement review bodies and courts may grant access to confidential documents but must safeguard trade secret protection by appropriate measures (e.g. inspection limited to legal representatives).

FAQ

Can a bidder require that its entire bid be kept confidential? A bidder may request confidentiality for specific information; the contracting authority is obliged to protect it, provided the information is genuinely worthy of protection and no statutory disclosure obligation applies.

What happens if the contracting authority unlawfully discloses confidential information? This may constitute a procurement law breach and render the award decision contestable; civil law damages claims may also arise.

How does confidentiality relate to the information duty under § 134 GWB? The information duty regarding the award must be fulfilled; however, trade secrets of other bidders worthy of protection must not be disclosed in the process.

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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.