Economic and Technical Capacity in Procurement Law 2026

Definition: Economic and technical capacity (Leistungsfähigkeit) in procurement law denotes the technical and economic capability of a tenderer or candidate to perform the tendered contract properly and in full; alongside reliability and professional ability, it is a central selection criterion that contracting authorities must assess prior to tender evaluation.

Last updated: January 2026 · Legal basis: Art. 58 Directive 2014/24/EU, § 122 GWB, §§ 68 et seq. BVergG 2018

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What is economic and technical capacity in procurement law?

Economic and technical capacity is a central selection criterion in public procurement and indicates whether a tenderer has the personnel, technical, equipment and financial resources required to perform the contract. The selection assessment – which together with capacity also includes reliability and professional ability – is mandatory before tender evaluation and must be kept strictly separate from it. A tenderer who cannot demonstrate the required capacity must be excluded from the procedure, regardless of how favourable its tender may be.

Dimensions of capacity

Economic and technical capacity comprises three essential areas: economic and financial standing, technical capacity, and professional capacity.

Economic and financial standing

Typically evidenced by:

• Bank reference or equivalent statement from a credit institution
• Annual accounts for the last three financial years (balance sheets, P&L)
• Turnover evidence (overall or segment-specific turnover)
• Proof of liability insurance (professional and operational third-party liability)

Technical capacity

Evidenced by:

• References for comparable contracts from the last three to five years
• Plant, machinery and technical equipment
• Quality management systems (e.g. ISO 9001 certification)
• Staffing capacity and qualifications of the personnel to be deployed
• Certificates of expertise (e.g. master craftsman certificate, official authorisations)

Professional capacity

Evidenced by:

• Entry in a professional or commercial register
• Compliance with conditions for professional admission
• Official licences and authorisations

Proportionality of selection criteria

Contracting authorities may only set selection criteria that are proportionate to the subject of the contract; excessive requirements are inadmissible.

Art. 58 (1) Directive 2014/24/EU requires that selection criteria be related and proportionate to the subject of the contract. A contracting authority that demands disproportionately high minimum turnover for a small contract breaches the principle of proportionality. As a rule of thumb, the required minimum turnover should not exceed two to three times the contract value.

Reliance on third-party capacity (consortia and subcontractors)

Tenderers may rely on the capacity of third parties – in particular subcontractors or members of a consortium – provided they demonstrate that the resources are actually available.

This is governed by Art. 63 Directive 2014/24/EU (so-called "reliance on third parties"). The tenderer must produce appropriate evidence that the resources of the third party (e.g. personnel, machinery) will actually be available for contract performance. A mere declaration of intent is generally insufficient.

Evidence and self-declaration

In EU-wide procedures, capacity can initially be demonstrated by means of the European Single Procurement Document (ESPD); the actual supporting documents are only requested from the prospective successful tenderer.

The ESPD (form under Implementing Regulation (EU) 2016/7) substantially simplifies the procedure, since tenderers need not submit all supporting evidence from the outset.

FAQ

What happens if a tenderer loses its capacity after submitting a tender? A material loss of capacity (e.g. insolvency filing, withdrawal of a licence) after submission but before award generally obliges the contracting authority to exclude the tenderer.

Can a contracting authority require additional selection criteria not listed in the statute? Yes, provided they are objectively justified, proportionate and linked to the subject of the contract. Selection criteria must be announced in advance in the contract notice.

May a contracting authority require certain certifications as mandatory evidence? Certifications (e.g. ISO 9001) may be required, but tenderers must be permitted to provide other equivalent evidence (§ 49 VgV; Art. 62 Directive 2014/24/EU).

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