Prohibition of Circumvention in Public Procurement Law 2026 – Protection Against Evasion of Procurement Duties

Prohibition of circumvention: contracting authorities must not evade procurement obligations through contract design or contract splitting. Principle and case groups.

Definition: The prohibition of circumvention (Umgehungsverbot) in public procurement law forbids contracting authorities from avoiding the application of procurement rules through the deliberate structuring of contracts, artificial contract splitting or other measures.

Last updated: January 2026 · Legal status: § 3 (2) VgV, § 3 (7) SektVO, Recital 68 of Directive 2014/24/EU, § 9 BVergG 2018

What is the prohibition of circumvention?

The prohibition of circumvention is a general principle of public procurement law which ensures that contracting authorities cannot evade their statutory procurement duties through clever contract design or structural measures. It is an expression of the principles of transparency and equal treatment as well as of European internal market law.

Without the prohibition of circumvention, contracting authorities could, for example, split a large contract that triggers EU-wide tendering obligations into many small contracts in order to remain below the thresholds and award them directly. This is precisely what the prohibition of circumvention forbids.

Key case groups

Artificial contract splitting

The artificial division of a single contract into several smaller part-contracts for the purpose of staying below the thresholds is expressly prohibited. § 3 (2) VgV makes clear that the estimation of the contract value may not be carried out with the intention of evading the procurement procedure. The totality of functionally connected services is in principle to be treated as one contract, and the contract value calculated accordingly.

Abusive contract design

Contracting authorities must not structure contracts in such a way that they formally fall outside the scope of procurement law while in substance fulfilling the same function as a contract subject to tendering. Examples include the abusive use of framework agreements, the construction of supposed in-house performance, or the formal interposition of third parties.

Abusive modification of existing contracts

Material modifications of an existing contract which de facto amount to a new contract but are made without a call for competition breach the prohibition of circumvention. Article 72 of Directive 2014/24/EU exhaustively regulates when contract modifications are permissible without conducting a new procurement procedure.

Legal consequences

Breaches of the prohibition of circumvention may render the contract concluded without a call for competition ineffective and may give rise to damages claims by passed-over tenderers. State aid consequences may also arise where public funds have been awarded without a proper procurement procedure.

FAQ

Is dividing a contract into lots also unlawful splitting? No. Dividing a contract into lots is required by procurement law (§ 97 (4) GWB) and is not a circumvention. What matters is whether the division is based on objective grounds or serves exclusively to stay below thresholds.

How does the public procurement tribunal assess possible splitting? The tribunal examines whether there is a substantive, temporal and economic connection between the individual contract parts that points to a single unitary contract.

Can a contracting authority award several similar small contracts without tendering? Only where this is objectively justified and the total value of all contracts does not exceed the thresholds. Repeated, similar awards without tendering may give rise to suspicion of splitting.

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