Innovation Protection Clause in Public Procurement Law 2026

Definition: An innovation protection clause is a contractual or procedural rule in a tender procedure that ensures that innovative solution concepts, designs, or technical information submitted by bidders are not passed on to third parties or used in other tender procedures without their consent.

Last updated: January 2026 · Legal basis: Directive 2014/24/EU Art. 21; BVergG 2018 § 23; GWB § 5(2)

---

What is an Innovation Protection Clause?

The innovation protection clause is an instrument of confidentiality protection in tender procedures and is particularly relevant in the competitive dialogue, the negotiated procedure, and the innovation partnership. Where contracting authorities solicit innovative technical solutions, concepts, or business models from bidders, there is a risk that this information will be passed on to other bidders or used in subsequent tenders. The innovation protection clause addresses this risk by means of clear confidentiality undertakings.

The term is not codified as a standalone legal institute but is derived from the general confidentiality rules of public procurement law. Art. 21 of Directive 2014/24/EU obliges contracting authorities to preserve confidential information from economic operators. In Austria, § 23 BVergG 2018 specifies this principle.

Areas of Application

Innovation protection clauses are particularly relevant in procedures in which bidders have to develop and present their own creative solutions to the contracting authority. This applies in particular to:

• Competitive dialogue – bidders develop solution approaches that are refined in dialogue with the contracting authority
• Negotiated procedure with prior competition – concepts feed into the tender
• Innovation partnership – new products or services are developed jointly
• Design contests – creative drafts and concepts are submitted

Content and Drafting

An effective innovation protection clause precisely regulates which information is to be treated as confidential, who has access to it, and what the legal consequences of any breach are. Typical components include:

• Definition of the protected subject matter (technical concepts, trade secrets, designs)
• Personal scope (members of the evaluation panel, external advisers)
• Duration of the confidentiality obligation
• Return or destruction of submitted documents after the procedure has ended
• Contractual penalty or damages provision in the event of breach

Related Terms

• Competitive Dialogue
• Innovation Partnership
• Negotiated Procedure

FAQ

Is there a statutory duty to include an innovation protection clause? There is no express statutory duty to include an innovation protection clause. However, contracting authorities are obliged under Art. 21 Directive 2014/24/EU to preserve confidential information – this should be safeguarded procedurally.

Does the protection also apply to unsuccessful bidders? Yes, the confidentiality protection applies regardless of whether a bidder is awarded the contract. Concepts of unsuccessful bidders may likewise not be used without consent.

What happens if the innovation protection clause is breached? Depending on how it is drafted, contractual penalties, damages claims, or procurement-law consequences may apply. Affected parties can assert civil-law claims.

---

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