Mixed Pricing (Mischkalkulation) in Procurement Law 2026

Definition: Mixed pricing (Mischkalkulation), in the procurement-law sense, occurs when a bidder deliberately shifts the prices of individual items in a bill of quantities so that certain items are calculated disproportionately high and others too low, in order to gain a financial advantage from expected quantity changes – this constitutes a breach of procurement law.

Last updated: January 2026 · Legal basis: § 13 VOB/A; § 16 VOB/A; case law of the BGH; decisions of the BVA

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Concept and forms

Mixed pricing is a form of bid manipulation in which the bidder calculates the unit prices of individual performance items not according to actual costs but in a strategically distorted way, in order to subsequently – when the contracting authority causes quantity changes – achieve additional revenue. Mixed pricing is thus a variant of the breach of the requirement of clear price information in the bill of quantities.

Typical patterns of mixed pricing:

• Items where quantity increases are expected are calculated at inflated prices.
• Items where quantity reductions are expected are set too low.
• The total price appears competitive, but the actual yield is far higher.

Distinction from permitted pricing

Not every differentiated pricing within a bill of quantities constitutes mixed pricing; entrepreneurial costing with cost allocation between items is in principle permitted, as long as there is no targeted manipulation to the detriment of the contracting authority.

The threshold of mixed pricing is crossed when:

• There is a striking imbalance between unit prices and actual performance costs.
• Certain items are recognisably inflated for strategic reasons.
• The price shifting suggests a specific expectation about quantity changes.

Legal consequences in the tender procedure

Identified mixed pricing generally leads to exclusion of the bid from the tender procedure, since the bid does not meet the requirements of clear, complete and consistent price information. § 16(1) No. 1 lit. b VOB/A and § 16 EU VOB/A provide for the exclusion of bids that do not contain the required information or whose prices are manifestly disproportionate to the performance.

The finding of mixed pricing requires a careful examination by the contracting authority; mere suspicion is not enough. The bidder must generally be asked for clarification (§ 15 VOB/A) before exclusion takes place.

Clarification interview and burden of proof

Before an exclusion on the grounds of mixed pricing, the contracting authority must give the bidder the opportunity to explain their pricing. In the clarification interview, the bidder can demonstrate that their pricing is based on plausible business considerations. If the bidder cannot explain the pricing plausibly, the exclusion is justified.

FAQ

How does a contracting authority detect mixed pricing? Through price comparisons across all bids, conspicuous price ratios between items, and comparison with their own cost estimates; a warning sign is when certain items deviate strikingly from the market price.

Is mixed pricing automatically a ground for exclusion? Not automatically; only after a request for clarification and the bidder's inability to explain the pricing plausibly can exclusion follow.

Can the contracting authority terminate the contract in cases of mixed pricing? If mixed pricing is discovered only after the contract has been awarded, claims for damages may exist depending on the extent; subsequent termination of the contract on the grounds of mixed pricing is legally complex.

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