Private Tender in Public Procurement Law 2026

Definition: A private tender is a competitive procedure for the procurement of goods or services carried out by private companies or other non-public contracting parties, which is in principle not subject to the statutory rules of public procurement law.

Last updated: January 2026 · Legal basis: GWB, BVergG 2018, general contract law

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What is a private tender?

The private tender differs from the public tender essentially in the contracting party: while public contracting authorities (the state, municipalities, public undertakings) are bound by procurement law, private contracting parties are in principle only subject to general civil-law rules. Private companies can select suppliers and service providers freely and without formal procedural requirements. Nevertheless, many private companies voluntarily apply procurement principles in order to ensure transparency, traceability and value for money in their purchasing.

Distinction from public procurement law

Public procurement law applies only to public contracting authorities within the meaning of the procurement directives and the GWB/BVergG. Classification into this category does not depend solely on legal form, but on the purpose and financing of the entity. Privately organised companies may also be subject to procurement rules if they perform public tasks or are state-financed or state-controlled (so-called "functional" approach).

Voluntary application of procurement principles

Many private companies voluntarily apply procurement principles – in particular equal treatment, transparency and economic efficiency – without being legally obliged to do so. Reasons include compliance requirements, requirements from investors and shareholders, internal governance policies or the use of grants to which procurement requirements may be attached.

Tenders with EU funding

An important exception to the freedom of private contracting parties exists where public funding is used. Recipients of EU Structural Fund money or national funding programmes are often required to conduct procurement procedures in accordance with procurement principles, even if they are not themselves public contracting authorities. This is regulated in the relevant funding guidelines and grant decisions.

FAQ

Does procurement law also apply to private companies? In principle, no, unless the company is a public contracting authority in the functional sense (e.g. a state-controlled company) or is subject to procurement requirements due to grants.

What happens if a private company acts in breach of procurement principles? Since there is no statutory obligation, there are no procurement-law sanctions. Civil-law liability claims based on pre-contractual duties (culpa in contrahendo) may, however, arise if the company incurred costs in reliance on a fair procedure.

Must private contracting parties ensure equal treatment? Not necessarily, in the absence of a statutory obligation. With a voluntary tender, however, an obligation of equal treatment may arise under general contract law.

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