Preliminary Work in Public Procurement Law 2026 – Services Before the Tender

Definition: Preliminary work in procurement law refers to services that a company has performed for a public contracting authority before, or independently of, a formal procurement procedure and which can give rise to conflicts of interest or distortions of competition in the subsequent tender.

Last updated: January 2026 · Legal basis: § 7 VgV (Germany), § 20 BVergG 2018 (Austria), Art. 41 Directive 2014/24/EU

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What is preliminary work?

In procurement law, preliminary work refers to services that a company performs for the public contracting authority in preparing a procurement procedure – for example design services, feasibility studies or consultancy services. The problem: the company involved in the preliminary work may have an information advantage in the subsequent procurement procedure that distorts competition.

Legal issue

Preliminary work can give rise to a conflict of interest and thus a ground for exclusion or a competition-law breach. Art. 41 Directive 2014/24/EU (§ 7 VgV, § 20 BVergG 2018) addresses the issue of "early involvement of candidates or bidders". A company involved in the preparation must not be automatically excluded from the procurement procedure, but the contracting authority must take appropriate measures to prevent a distortion of competition.

Measures to ensure competitive neutrality

The contracting authority has the following options for ensuring a fair procedure despite preliminary work:

• Information balancing: all material information held by the company that performed the preliminary work is made available to all other bidders at the same time
• Reasonable extension of time: other bidders are given sufficient time to catch up on the information gap
• Exclusion as a last resort: exclusion of the company that performed the preliminary work is permissible only where the conflict of interest cannot be removed by other measures

Preliminary work in construction works

For construction projects, the design firm (architect, engineer) often prepares the tender documents and then acts as the client's representative. This company and its associated companies generally cannot bid in the subsequent works tender.

FAQ

Must the contracting authority exclude the company that performed the preliminary work? Not automatically. The contracting authority must first check whether information balancing is possible. Only where balancing is insufficient is exclusion the appropriate measure.

What is a market consultation? A prior market consultation is a permitted form of preparation in which the contracting authority informs the market and obtains feedback without giving individual companies an advantage. Art. 40 Directive 2014/24/EU expressly regulates this.

Can preliminary work give rise to claims for damages? Where a company is wrongly excluded on the basis of its preliminary work, it can claim damages (reliance damages).

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