Duty of Confidentiality in Procurement Law 2026

Definition: The duty of confidentiality in procurement law is the statutory obligation imposed on public contracting authorities and their staff not to disclose without authorisation, or to use for other purposes, confidential information of bidders and candidates obtained in the course of a procurement procedure.

Last updated: January 2026 · Legal basis: Art. 21 Directive 2014/24/EU; § 5 VgV; § 41 BVergG 2018; § 17 GeschGehG

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Legal basis of the duty of confidentiality

The duty of confidentiality in procurement law is rooted in EU primary law (the principles of transparency and confidentiality), in the EU procurement directives and in national implementing legislation, as well as in general trade secrets law. Article 21 of Directive 2014/24/EU expressly requires Member States to ensure that contracting authorities do not disclose information forwarded to them by economic operators which they have designated as confidential, except where such disclosure is required by law.

In Germany, § 5 VgV transposes this obligation and requires contracting authorities to maintain the confidentiality of all information transmitted. In Austria, § 41 BVergG 2018 contains corresponding provisions.

The Trade Secrets Act (Geschäftsgeheimnisgesetz – GeschGehG), in force in Germany since 2019, supplements this regime with criminal and civil law protection for trade secrets.

Persons bound by the duty

The duty of confidentiality applies primarily to the public contracting authority as an institution and to all natural persons acting for the authority in the procurement procedure – i.e. procurement officials, external advisers, experts and members of evaluation panels. External service providers engaged to support the procedure (e.g. procurement law firms, expert appraisers) are likewise bound and must be contractually obliged to maintain confidentiality.

Scope of the duty

The duty of confidentiality extends to all information that the contracting authority obtains from bidders and candidates during the procurement procedure and which they have expressly or recognisably designated as confidential.

It covers in particular:

• Bid contents and pricing
• Technical and commercial concepts
• Reference projects with sensitive details
• Company data (capacities, staffing structure)
• Security-related information

The duty of confidentiality is not absolute: it must yield to statutory disclosure obligations (e.g. the information duty under § 134 GWB, file access in review proceedings).

Breach of the duty

A breach of the duty of confidentiality may give rise to procurement law, civil law and criminal law consequences.

• Procurement law: breach of the principle of equal treatment; contestability of the award decision by disadvantaged bidders.
• Civil law: damages claims under §§ 10 et seq. GeschGehG; injunctive relief.
• Criminal law: §§ 17 et seq. GeschGehG (old version) (today: § 23 GeschGehG) may give rise to criminal liability where secrets are disclosed without authorisation.

In review proceedings, review chambers may grant access to confidential documents but must safeguard secrecy through procedural precautions (e.g. limiting file access to legal representatives, "in camera" proceedings).

FAQ

Can a bidder mark certain information as confidential? Yes, bidders can and should designate confidential information as such. The contracting authority is then obliged to protect that information, provided no statutory ground for disclosure applies.

Does the duty of confidentiality continue to apply after the procedure has closed? Yes, the duty continues; even after the award, confidential bidder information may not be disclosed without authorisation.

What if the contracting authority engages an external adviser for bid evaluation? The external adviser is likewise bound by the duty of confidentiality; they must be contractually obliged to maintain confidentiality and may not use information obtained for other mandates.

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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.