German Civil Code (BGB) in Public Procurement Law 2026

Definition: The Bürgerliches Gesetzbuch (BGB) is Germany's central civil code and serves in public procurement as a subsidiary legal basis for the contractual relationships between contracting authority and contractor, as well as for damages claims arising from procurement procedures.

Last updated: January 2026 · Legal basis: BGB as amended on 18 August 1896 (RGBl. p. 195), as subsequently amended; Sections 241 et seq., 311 et seq., 433 et seq. BGB

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BGB and public procurement law

The German Civil Code forms the civil-law basis for all contracts concluded in the context of public procurement procedures – because public contracting authorities also enter into private-law purchase, works and service contracts. Procurement law (GWB, VgV, VOB) governs the procedure up to the conclusion of the contract; what comes afterwards is primarily determined by the BGB – supplemented by specific bodies of rules such as the VOB/B (Construction Contract Procedures Part B) or the VOL/B (largely superseded by the VOB and general law of obligations).

Types of contract in public procurement

The BGB provides various types of contract that apply depending on the subject matter of the contract.

• Sales contract (Section 433 BGB): For supply contracts (e.g. office supplies, vehicles, IT hardware)
• Contract for work (Section 631 BGB): For construction and works contracts, where a result is owed
• Contract for services (Section 611 BGB): For services where an activity, not a result, is owed
• Contract for the manufacture and delivery of movable items (Section 650 BGB): Mixed form for movable items to be produced

Pre-contractual obligations (culpa in contrahendo)

The most significant civil-law construct in the procurement context is the pre-contractual obligation under Sections 311(2), 241(2) BGB (culpa in contrahendo). With the initiation of a procurement procedure, a statutory obligation arises between the contracting authority and the participating bidders that gives rise to duties of protection and consideration. If the contracting authority breaches these duties through faulty award decisions, it is liable to compensate the injured bidder in damages.

In procurement practice, this means:

• Bidders are entitled to a correct evaluation of their tenders
• Faulty evaluations may trigger claims for damages
• The negative interest (cost of preparing the tender) is generally recoverable
• The positive interest (lost profit) is recoverable where an entitlement to the award is proven

Relevance for damages claims

Bidders harmed by procurement errors base their damages claims before the ordinary courts on Sections 280 and 311 BGB. The public procurement tribunals are not competent for damages claims; they can only correct the ongoing procedure. The civil-law route via the BGB is the only way to recover lost profits.

BGB in Austria

In Austria, the German BGB does not apply; instead, the Allgemeines Bürgerliches Gesetzbuch (ABGB) of 1811 applies. It fulfils the same function as a subsidiary civil-law basis for public procurement contracts. The principles of damages (Sections 918 et seq. ABGB) and the rules on contract conclusion and content (Sections 859 et seq. ABGB) are the Austrian equivalents of the BGB provisions.

FAQ

Does the BGB also apply to contracts where the VOB/B has been agreed? Yes, on a subsidiary basis. Where the VOB/B does not provide a rule, the BGB applies. If no effective incorporation of the VOB/B has taken place (e.g. due to non-incorporation), the BGB rules on contracts for work apply in full.

Which court is competent for damages claims by bidders? The ordinary courts (civil courts), not the public procurement tribunals. In Germany, the regional courts (Landgerichte) are the courts of first instance for damages claims by bidders against contracting authorities.

Can public contracting authorities restrict the BGB through general terms and conditions? Only to a limited extent. As users of general terms and conditions, public contracting authorities cannot impose unreasonable clauses on bidders. Section 307 BGB (review of clause content) applies.

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