Intellectual Services in Procurement Law 2026

Definition: Intellectual services are services whose core content lies in intellectual creative work – such as consultancy, planning, expert reports, architectural and engineering services or legal advice – and which, in procurement law, place specific demands on procedural design and evaluation, since price alone cannot be the decisive criterion.

Last updated: January 2026 · Legal basis: § 127 GWB; Art. 67 Directive 2014/24/EU; HOAI; BVergG 2018

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What are intellectual services?

Intellectual services are types of services in which the intellectual, creative or scientific component of performance is so prominent that a purely price-based selection cannot do justice to the procurement objective. Unlike standardised supply or works contracts, the quality of an intellectual service cannot be fully specified ex ante; it depends substantially on the individual service provider, their experience, methodology and creativity.

Typical intellectual services in procurement law include:

• Architectural and engineering services (planning, site supervision)
• Legal, tax and management consultancy
• Expert and appraisal services
• IT consultancy and software development (conceptual)
• Research and development services
• Communications and PR services

Particularities of procurement

For intellectual services, the contracting authority must design the award criteria with a quality orientation; an exclusively price-driven approach (lowest-price principle) is generally questionable from a procurement law perspective. Article 67(2) of Directive 2014/24/EU requires that the contract be awarded on the basis of the most economically advantageous tender, with quality, the competence of the team and the methodological approach to be given significant weight in the case of intellectual services.

§ 127(4) GWB expressly clarifies that for contracts for intellectual services, price need not be the sole award criterion and that quality criteria may be decisive.

Procedural particularities

For intellectual services above the EU thresholds, the restricted procedure, the competitive procedure with negotiation or the competitive dialogue are often appropriate, as these procedure types allow the necessary communication between contracting authority and bidder regarding the service requirements.

For architectural and engineering services, the design contest (§§ 69 et seq. VgV) is a dedicated procedural instrument that brings the creative dimension to the fore. Design contests are particularly appropriate for urban planning and building design tasks.

Fee schedules and price regulation

In Germany, the HOAI (Fee Structure for Architects and Engineers) was long considered a binding price framework for intellectual services in the planning sector; since the CJEU ruling of 4 July 2019 (Case C-377/17), the minimum fees are no longer compatible with EU law as mandatory minimums. Contracting authorities may depart from the HOAI minimum rates in EU-wide procurement; below the thresholds, the legal position remains more complex.

FAQ

May intellectual services be awarded purely on price? Generally not; for services in which quality, competence and methodology are decisive, the contracting authority must incorporate qualitative award criteria.

What is the difference between intellectual services and standardised services? Standardised services (e.g. cleaning, catering) are clearly specifiable and comparable; with intellectual services, performance is essentially shaped by the service provider and cannot be fully described in advance.

Which procedure type is best suited for intellectual services? Often the competitive procedure with negotiation with prior call for competition, or the competitive dialogue; for planning services, the design contest under §§ 69 et seq. VgV.

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