Formal Defects and Errors in Offers in Public Procurement Law 2026

Formal defects in offers: grounds for exclusion, curable errors, and the right to request subsequent submission under German and Austrian procurement law. Order of examination explained.

Definition: Formal defects and errors in offers are breaches of the formal requirements – as to form, completeness, and timeliness of an offer – set by the contracting authority in the procurement documents which, depending on their nature and severity, may lead to mandatory exclusion or to curable incompleteness.

Last updated: January 2026 · Legal basis: § 57 VgV, § 16 VOB/A, § 129 BVergG 2018, Art. 56 Directive 2014/24/EU

What are formal defects and errors in offers?

The examination of offers in procurement law follows a clear order: formal examination before substantive examination – an offer that does not meet the formal minimum requirements does not enter the evaluation. Formal defects concern the outward form of the offer, not its substantive quality. A formally flawless offer can still be substantively poor; a formally defective offer can still be substantively outstanding – under procurement law, however, a formally defective offer must, as a rule, be excluded or cured.

Procurement law distinguishes between:

Mandatory grounds for exclusion: Formal errors leading to immediate exclusion
Curable defects: Formal incompletenesses where a subsequent request is possible
Immaterial formal errors: Minor deviations without effect on the award

Mandatory formal grounds for exclusion

Certain formal errors mandatorily lead to the exclusion of the offer – cure is not possible.

Under § 57(1) VgV, offers must be excluded where they:

Do not have the required electronic form (where exclusively electronic submission is prescribed)
Were received after the offer deadline has expired
Do not bear the required signature or qualified electronic signature (according to requirements)
Contain amendments to the contract documents
Do not contain the required minimum price information (missing unit prices)
Constitute inadmissible variant offers (where only main offers were permitted)

In Austria (§ 129 BVergG 2018), analogous grounds for exclusion apply.

Curable formal defects

Missing, incomplete, or erroneous documents and declarations that are company-related can be submitted subsequently upon request of the contracting authority.

The right to request subsequent submission under § 56 VgV permits the cure of the following formal defects:

Missing suitability evidence (certificates, reference lists)
Missing self-declarations (e.g. on reliability)
Incomplete company details
Missing signatures on non-essential declarations

The subsequent request must not alter the content of the offer and must not affect the bidder ranking.

Immaterial formal errors

Minor formal deviations that neither affect competition nor disadvantage other bidders may be tolerated by contracting authorities.

In practice, procurement bodies and procurement courts occasionally accept minor deviations (e.g. a wrong date on a form not relevant to evaluation) where these are obviously attributable to an oversight and have no substantive effect.

Order of examination of offers

The examination of formal defects follows a statutorily prescribed order.

Timeliness: Was the offer received in time?
Formal requirements: Were all formal requirements observed (signature, form of submission)?
Completeness: Are all required documents and declarations present?
Subsequent request: For curable defects: set a deadline for subsequent submission
Exclusion: For incurable defects or where there is no response to the subsequent request

Distinction from substantive defects

Formal defects concern the outward form of the offer; substantive defects concern its substance.

An offer with an inadequately low price has a substantive defect (adequacy check under § 60 VgV). An offer without a signature has a formal defect. Both can lead to exclusion, but are subject to different examination rules.

Related terms

FAQ

Does a missing signature always lead to exclusion? Not mandatorily. For electronically submitted offers without a qualified electronic signature (where this was required), exclusion may be necessary. For non-essential accompanying documents, a subsequent request may be possible.

Can an offer submitted after the deadline still be considered? No. Late offers must be excluded – this is not curable.

May a contracting authority overlook formal errors with certain bidders and insist on them with others? No. The principle of equal treatment requires the contracting authority to treat all bidders equally. Selectively overlooking formal defects breaches competition and is impermissible under procurement law.

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