Formal Error in Public Procurement Law 2026

Formal error in procurement law: breach of form in offers or in the procurement procedure. Distinction from substantive error and consequences under Austrian law.

Definition: A formal error in procurement law is a breach of the formal requirements of the procurement procedure or of an offer that relates to the outward form, completeness, or compliance with formal requirements, without necessarily affecting the substantive content of the service or of the offer.

Last updated: January 2026 · Legal basis: § 129 BVergG 2018, § 57 VgV, VOB/A

What is a formal error?

In Austrian procurement law, the term "formal error" is often used as the counterpart to "substantive error": formal errors concern the form, substantive errors concern the content. The distinction is significant in procurement law because formal errors may, in certain circumstances, be curable (through a subsequent request or correction), while substantive errors – such as an incomplete price – generally lead to exclusion.

The term is not given a specific legal definition in the BVergG 2018, but is used consistently in case law and the legal literature as an umbrella term for breaches of formal requirements that have no impact on the substantive content of the offer.

Typical formal errors

Formal errors can arise both in the procurement procedure itself and in the offers submitted.

Formal errors in offers

Missing date on a form that is not relevant to evaluation
Missing or illegible signature on an accompanying document
Wrong use of a form (but correct content)
Missing page numbering despite a corresponding requirement
Minor deviations from formal requirements for offer folders

Formal errors in the procurement procedure

Errors in the formal presentation of the notice (without substantive impact)
Formal defects in the bidder information (but complete in substance)
Late publication of the contract award notice (without effect on the procedure itself)

Curability of formal errors

The decisive question for formal errors is always: can the error be cured, or does it mandatorily lead to exclusion?

Principle: Formal errors that do not affect competition and do not breach the principle of equal treatment of all bidders are generally curable. The contracting authority can and should, in such cases, make a subsequent request or treat the error as immaterial.

Formal errors that affect competition or jeopardise the confidentiality of the offer (e.g. an offer submitted unsealed where sealed submission was required) may, by contrast, lead to exclusion.

Distinction from substantive error

Substantive errors concern the content of the offer; formal errors concern its form.

Aspect	Formal error	Substantive error
Reference	Form, completeness	Content, price, performance
Curability	Often yes (subsequent request)	As a rule, no
Exclusion consequence	Only for material breach	Usually mandatory
Example	Missing signature	Missing unit price

Related terms

FAQ

When is a formal error a ground for exclusion? Where it affects competition, is incurable, or the contracting authority has expressly defined it as a mandatory ground for exclusion in the procurement documents. Minor formal errors without relevance to competition are, by contrast, regularly tolerable.

Must the contracting authority always make a subsequent request in the case of formal errors? No. An obligation to make a subsequent request exists only for certain company-related documents. In the case of minor formal errors, the contracting authority may treat them as immaterial without making a subsequent request.

How does a formal error differ from a clerical error? Clerical errors (obvious typographical or arithmetical errors) are a sub-category of correctable errors and may, under strict conditions, be corrected. Formal errors, by contrast, concern the outward form and completeness of the document.

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