Negotiated Procedure under Procurement Law

The negotiated procedure under EU procurement law allows contracting authorities to negotiate with selected candidates – admissibility, process and national rules.

Definition: The negotiated procedure is a special type of award procedure in public procurement, under which the contracting authority negotiates with selected candidates about the conditions of the contract in order to identify the most economically advantageous tender.

Last updated: January 2026 · Legal status: Art. 26 et seq. Directive 2014/24/EU, BVergG 2018 (AT), VgV (DE)

What is the negotiated procedure?

The negotiated procedure is a type of procedure under EU procurement law that allows public contracting authorities, under certain conditions, to negotiate directly with one or more selected undertakings about the subject matter, prices and conditions of the contract, instead of deciding solely on the basis of bids submitted. It differs fundamentally from the open and restricted procedures in that there is no rigid separation between bid and award, but rather a dynamic negotiation process. The negotiated procedure is thus the most flexible of the regulated procurement procedures.

Purpose and importance

The purpose of the negotiated procedure is to provide public contracting authorities with an instrument that meets the complexity of certain procurement projects that resist full advance specification. Not every procurement can be captured in conclusive specifications; particularly for innovative projects, complex IT projects or services with a high advisory component, a dialogue element is useful.

At the same time, the negotiated procedure is particularly susceptible to abuse, which is why EU procurement law restricts its use to exhaustively defined cases of admissibility and imposes strict procedural duties.

Negotiated procedure with and without prior publication

Procurement law fundamentally distinguishes between the negotiated procedure with prior publication and the negotiated procedure without prior publication, the latter being the exception and subject to particularly tight conditions.

Negotiated procedure with prior publication

In the negotiated procedure with prior publication, the contract is published EU-wide in the Supplement to the Official Journal of the European Union (TED notice). Interested undertakings may apply; after assessing suitability, the contracting authority selects at least three candidates who are invited to submit initial bids. Negotiations then take place which lead to the submission of final bids.

Negotiated procedure without prior publication

The negotiated procedure without prior publication is an exceptional procedure that exempts the contracting authority from the duty of EU-wide tendering. It is admissible only in the cases exhaustively listed in Art. 32 of Directive 2014/24/EU, such as:

An unsuccessful open or restricted procedure
Urgency for unforeseeable reasons
Additional services that, for technical reasons, must be performed by the existing contractor
Contracts that, for security reasons, can only be awarded to a particular undertaking

Conditions of admissibility

The negotiated procedure with prior publication is only admissible where the conditions of admissibility in Art. 26(4) of Directive 2014/24/EU are fulfilled. The most important of these are:

The contracting authority's needs cannot be met without adaptation of readily available solutions
The contract includes design or innovative solutions
The contract cannot, for specific reasons such as the particularity of the supplies, services or works, be awarded without prior negotiation
The technical specifications cannot be defined by the contracting authority with sufficient precision
A bid submitted in an open or restricted procedure was irregular or unacceptable

The contracting authority bears the burden of demonstration and proof for the existence of the conditions of admissibility.

Procedural sequence

The course of the negotiated procedure with prior publication is typically structured in several phases: notice publication, application and suitability check, invitation to submit bids, negotiation and award.

Notice publication: Publication of the contract notice on TED (EU-wide notice obligation above the thresholds)
Application phase: Undertakings submit requests to participate
Suitability check: Assessment of candidates' suitability against the suitability criteria
Selection of candidates: At least three candidates are invited
Initial bids: Submission of initial bids on the basis of the procurement documents
Negotiations: Negotiation on initial bids; the confidentiality of confidential information must be observed
Final bids: Invitation to submit final bids after conclusion of negotiations
Award: Award of the contract to the most economically advantageous bidder

During the negotiations, the principle of equal treatment applies: all bidders must be given the same information where information is given to one bidder that could affect the negotiating position of others.

Legal basis

The EU-law basis for the negotiated procedure is found in Art. 26 to 32 of Directive 2014/24/EU on public procurement. For utilities contracting authorities, Directive 2014/25/EU applies, which provides for broader negotiating rights. The Remedies Directive 89/665/EEC secures legal protection for bidders in the negotiated procedure.

National transposition

Austria (BVergG 2018)

In Austria, the negotiated procedure is regulated in §§ 28–34 BVergG 2018. The act distinguishes between the negotiated procedure with prior publication (§ 28 BVergG 2018) and without prior publication (§ 30 BVergG 2018). The conditions of admissibility correspond essentially to Directive 2014/24/EU; the BVergG 2018, however, contains in part more specific national rules. For sub-threshold procurements, the BVergG 2018 provides for a simplified negotiated procedure (§ 41 BVergG 2018).

Germany (GWB / VgV / UVgO / VOB)

In Germany, §§ 17 and 18 VgV govern the negotiated procedure for supply and service contracts above the EU thresholds. § 17 VgV covers the negotiated procedure with call for participation; § 18 VgV regulates the negotiated procedure without call for participation. The conditions of admissibility are exhaustively regulated and correspond to Art. 26(4) and Art. 32 of Directive 2014/24/EU. For works, VOB/A-EU contains analogous provisions. For sub-threshold procurements, the UVgO likewise provides for a negotiated procedure.

Distinction from competitive dialogue

The negotiated procedure and the competitive dialogue are both tailored to complex contracts but differ significantly in structure and purpose. In the competitive dialogue under Art. 30 Directive 2014/24/EU, the joint development of the solution is the focus: the contracting authority defines only its needs and goals, not a preliminary specification. In the negotiated procedure, by contrast, a specification – albeit one open to adjustment – already exists as a basis for negotiations. The competitive dialogue is intended for cases where the contracting authority cannot objectively name the appropriate means to meet its needs.

Related terms

Open procedure: The standard procedure in EU procurement law without restriction on the number of bidders
Restricted procedure: Two-stage procedure with call for participation but without negotiation
Competitive dialogue: Procedure for particularly complex contracts with joint solution development
Direct award: Award without a competitive procedure below the direct-award value thresholds
TED notice: Mandatory publication in the Supplement to the EU Official Journal
Suitability criteria: Conditions for participation in the negotiated procedure

FAQ

When may a contracting authority choose the negotiated procedure? The negotiated procedure with prior publication is admissible where one of the exhaustively defined grounds in Art. 26(4) Directive 2014/24/EU (§§ 28 et seq. BVergG 2018; §§ 17 et seq. VgV) is met, for example for contracts requiring innovative or design solutions or which cannot be awarded without prior negotiation.

How many candidates must the contracting authority invite to the negotiated procedure? In the negotiated procedure with prior publication, at least three suitable candidates must be invited to submit bids, provided that a sufficient number of suitable candidates are available.

Can the contracting authority negotiate every aspect of the bid in the negotiated procedure? No. Certain minimum requirements and the award criteria must be set from the outset and may not be changed retrospectively. The principle of equal treatment requires the contracting authority to treat all bidders equally.

Can the contracting authority, in the negotiated procedure without prior publication, approach a supplier directly? Yes; that is precisely the characteristic of the negotiated procedure without prior publication. The contracting authority may negotiate directly with one or more undertakings without conducting an EU-wide tender – but only in the exceptional cases regulated by law.

Does the negotiated procedure also apply below the EU thresholds? Yes. Both the BVergG 2018 and the UVgO provide for simplified forms of the negotiated procedure for procurement below the EU thresholds, which are subject to less stringent formal requirements.

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