Open House Procedure in Public Procurement Law 2026

Definition: The open house procedure is a procurement model in which a public contracting authority concludes a contract at a uniform price with every provider that meets certain pre-defined conditions and so notifies, without making a selection decision among the providers – and which, according to the case law of the CJEU, under certain conditions does not fall under procurement law as a public contract.

Last updated: January 2026 · Legal basis: CJEU Case C-410/14 (Falk Pharma), C-216/17 (Tirkkonen), Directive 2014/24/EU

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Basic concept and origin

The open house procedure was shaped by the CJEU as a phenomenon relevant under procurement law and has since been a central concept in the procurement of health and social services. The term derives from the English "open house" – literally, the house is open to everyone who meets the conditions. The contracting authority makes no selection decision; it does not reject any provider that meets the requirements.

CJEU case law

In Case C-410/14 (Falk Pharma, 2016), the CJEU ruled that a system in which the public contracting authority concludes a contract on uniform conditions with every provider that meets the conditions does not constitute a public contract within the meaning of the procurement directives. The decisive reason: the procurement directives presuppose that the contracting authority chooses among several bids. If such a selection decision is missing – because all providers are simply accepted – there is no award procedure in the legal sense.

In Case C-216/17 (Tirkkonen, 2019), the CJEU clarified: the system must not be closed at a certain point in time; new providers must be able to join at any time. If the system is closed at a cut-off date and no new providers are admitted thereafter, there is a de facto selection decision, which triggers the procurement obligation.

Conditions for procurement-law exemption

An open house procedure is only exempt from procurement law if the following conditions are cumulatively met:

1. No selection decision: Every provider that meets the conditions is accepted – without quantitative limit.
2. System open at any time: New providers can join at any time; the system is not closed at a cut-off date.
3. Uniform conditions: All providers receive identical contract terms (price, performance requirements).
4. No competitive element: There is no evaluation or ranking of the providers.

Areas of application

In practice, the open house procedure is used above all in the area of pharmaceutical supply, in social services and in care. Statutory health insurance funds conclude framework contracts with all pharmacies or care providers that meet certain minimum requirements. In Germany, the model was discussed in particular in the judgment of the BSG in connection with pharmaceutical rebate agreements.

Risks and limits

The open house procedure is not a general instrument to circumvent procurement law. If even one of the criteria mentioned is not met – e.g. because the number of providers is de facto limited or the system is closed after a deadline – there is a risk of qualification as a public contract under procurement law with corresponding obligations.

Related terms

• Social and other specific services
• Direct award
• Framework agreements
• Award procedure

FAQ

Is the open house procedure recognised in Austria? Yes. The CJEU case law applies in all EU Member States. Austrian contracting authorities can use the model under the conditions defined by the CJEU.

Can the open house procedure be used for works? In practice, the model is limited to supply and service contracts where there is no quantitative limit. For works, it is regularly not an option.

What happens if an open house procedure has been unlawfully treated as exempt from procurement law? There is a de facto award which can be challenged by bypassed bidders.

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