Post-Tender Negotiations in Public Procurement 2026

Post-tender negotiations in public procurement: prohibition of unlawful negotiations after bid submission in the open procedure, and the permissible scope in the negotiated procedure.

Definition: Post-tender negotiations are negotiations between the contracting authority and bidders concerning the content or price of a bid after expiry of the bid submission deadline; they are in principle prohibited in the open and restricted procedures (prohibition of negotiations), but are by contrast expressly provided for in the negotiated procedure and the competitive dialogue.

Last updated: January 2026 · Legal basis: § 15(3) VOB/A, § 17 EU-VOB/A, § 57 VgV, Art. 56(3) Directive 2014/24/EU, § 99 BVergG 2018

What are post-tender negotiations?

Post-tender negotiations refer to any form of substantive communication between the contracting authority and a bidder after submission of the bid that aims to modify the content of the offer, the price or the specification of the services. The procurement-law assessment of such negotiations depends decisively on the type of procedure chosen: while they are strictly prohibited in the open procedure, they form the central element in the negotiated procedure.

Prohibition of negotiations in the open and restricted procedures

In the open and restricted procedures a strict prohibition of negotiations applies: after receipt of bids, negotiations on the bid content, prices or other conditions are not permitted. This prohibition follows from the principles of equal treatment and transparency: if a contracting authority were to renegotiate with individual bidders, other bidders would suffer competitive disadvantage.

The following measures are, however, permissible:

Clarification of bids (§ 15(5) VOB/A, § 60 VgV): explanation of unclear bid components without altering their content
Subsequent submission of missing documents (§ 56 VgV): request for the submission of missing evidence
Clarification of abnormally low prices (§ 60 VgV): explanation of price formation for conspicuously low bids

Negotiations in the negotiated procedure

In the negotiated procedure with a prior call for competition (§§ 17, 119(5) GWB, Art. 29 Directive 2014/24/EU) negotiations on all aspects of the bid are expressly provided for and form the central feature of this procedure. The contracting authority negotiates with the selected bidders in order to optimise their offers and tailor them to the procurement need. However, even here certain limits apply:

Minimum requirements (technical specifications, award criteria) may not be the subject of negotiation
All bidders must be informed simultaneously of material changes resulting from the negotiations
The final offer ("Best and Final Offer") may no longer be renegotiated

Negotiations in the competitive dialogue

In the competitive dialogue (§ 18 GWB, Art. 30 Directive 2014/24/EU) a dialogue between the contracting authority and the selected candidates on all aspects of the contract is permissible, until the authority has identified the solution(s) which meet its needs. Once the dialogue is closed, the bidders are invited to submit their final tenders on the basis of the solutions developed in the dialogue; the final tenders themselves may no longer be renegotiated.

Austria: Post-tender negotiations under BVergG 2018

In Austria, § 99 BVergG 2018 applies comparable rules: in the open and restricted procedure, negotiations after bid submission are prohibited; in the negotiated procedure (§§ 34 ff. BVergG 2018) they are permissible and indeed envisaged.

FAQ

What is the difference between clarification of bids and post-tender negotiations? A clarification merely explains the existing bid content without altering it. A post-tender negotiation modifies the bid content itself.

May contracting authorities negotiate prices in the open procedure? No. Any price negotiation after bid receipt in the open procedure is unlawful and may render the award ineffective.

What applies to the clarification of abnormally low bids? The clarification of abnormally low bid prices under § 60 VgV is not a post-tender negotiation but an enquiry. The contracting authority may request the bidder to explain its pricing, but must not invite the bidder to raise the price.

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