Equal Opportunity in Public Procurement Law 2026

Equal opportunity in public procurement law: the principle of equal treatment for all bidders and applicants in public procurement procedures. Basis, application and limits.

Definition: Equal opportunity in public procurement law denotes the principle that all bidders and applicants in a public procurement procedure must participate in the competition under identical conditions and that no discriminatory favouring or disadvantaging of individual participants by the contracting authority is permitted.

Last updated: January 2026 · Legal basis: Directive 2014/24/EU Article 18(1), BVergG 2018 Section 20, GWB Section 97(2)

Equal opportunity as a procurement principle

Together with transparency and competition, equal opportunity is one of the three foundational principles of European procurement law and is derived directly from the fundamental freedoms of the TFEU and the general principle of equality. Article 18(1) of Directive 2014/24/EU expressly formulates this principle: contracting authorities treat economic operators equally and without discrimination and act transparently and proportionately.

In Germany, the principle of equal treatment is enshrined in Section 97(2) GWB; in Austria, in Section 20 BVergG 2018. It applies to all procedural steps – from the contract notice to the award decision.

Practical manifestations

The principle of equal opportunity is concretised in numerous individual requirements concerning the contracting authority's procedure.

Uniform tender documents

All bidders receive the same tender documents containing identical information. Changes after publication must be communicated to all bidders simultaneously.

Equal disclosure of information

If the contracting authority answers bidder questions, the answers must be forwarded to all bidders in anonymised form – preferential individual information to particular bidders is inadmissible.

Uniform tender evaluation

All tenders are evaluated according to the same award criteria and weightings announced in advance. A subsequent change in the evaluation method or different application to different bidders breaches equal opportunity.

Equal deadlines

All bidders have the same tender deadline. Extensions or informal deadline extensions for individual bidders are inadmissible.

Negotiated procedure

In a negotiated procedure, all participants must be negotiated with on equal terms. Information disclosed to one bidder in negotiations and relevant to other bidders must be communicated to all.

Positive discrimination and social criteria

The principle of equal opportunity does not preclude positive support for disadvantaged groups, provided this is legally provided for and proportionate. For example, contracting authorities may reserve contracts for sheltered workshops for persons with disabilities or for social enterprises (Article 20 of Directive 2014/24/EU; Section 118 GWB). This is an admissible exception to the principle of equal treatment, deliberately created by the legislator.

Equal opportunity and SME support

Support for small and medium-sized enterprises (SMEs) in procurement law is compatible with the principle of equal opportunity if it does not result in discrimination against larger companies. Instruments such as the division of contracts into lots (Article 46 of Directive 2014/24/EU; Section 97(4) GWB) are admissible as structural measures because they provide equal opportunities for all market participants – including SMEs.

FAQ

May a contracting authority favour a bidder from the region? No. Regional preferences violate the principle of equal treatment and – where other EU Member States are affected – the prohibition of discrimination under the TFEU. Exceptions apply only where the lack of single market relevance has been established.

What happens if the contracting authority provides one bidder with additional information? This constitutes a serious breach of equal opportunity and may lead to the challenge of the award decision. In extreme cases, the entire procedure may be annulled.

Must foreign bidders be treated in the same way as domestic ones? Yes, unconditionally. The EU-law prohibition of discrimination protects, in particular, bidders from other EU Member States. Formal or informal preferences for domestic providers are contrary to procurement law.

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