Prohibition on Negotiation in Procurement Law

The prohibition on negotiation bars contracting authorities, in the open and restricted procedures, from any negotiation with bidders about the content of bids after bid opening.

Definition: The prohibition on negotiation is the principle of procurement law under which, in the open and restricted procedures, no negotiations may take place between the contracting authority and bidders after bid opening about the content of the bids, in particular about prices, scope of services and contract terms.

Last updated: January 2026 · Legal status: Art. 2(1)(1) Directive 2014/24/EU; AT: § 112 BVergG 2018; DE: § 15 VgV

What is the prohibition on negotiation?

The prohibition on negotiation is one of the central structural principles of the open and restricted procurement procedure: it ensures that the bids submitted are evaluated on equal terms and that no bidder can obtain, through subsequent negotiations, advantages that are not available to other bidders. The prohibition thus protects both competition and the principle of equal treatment.

The prohibition on negotiation applies from the moment of bid opening. Up to the opening of the bids, substantive communication between the contracting authority and bidders – for example to answer bidder questions – is permitted and indeed required. After opening, substantive exchange is, however, in principle prohibited.

Importance and function

The prohibition on negotiation ensures the integrity of competition in the formal procurement procedure: since all bidders submit their bids on the basis of the same procurement documents and without knowing the competing bids, the decision must be taken solely on the basis of those bids. Subsequent negotiations would distort the competitive outcome and could be used in a targeted way to favour particular bidders.

Permitted exceptions: clarification discussions

The prohibition on negotiation does not exclude clarification discussions. Contracting authorities may – and in certain cases must – contact bidders in order to:

Clarify ambiguities in the bid (e.g. in the case of contradictory price details)
Identify and correct arithmetic errors (where permitted by procurement law)
Request missing documents (within the limits prescribed by law)

Clarification discussions may not, however, be used to alter the substance of bids, to renegotiate prices or to exchange elements of the works. The line between permissible clarification and impermissible negotiation must be drawn carefully in each case.

Distinction from the negotiated procedure

The prohibition on negotiation applies only to the open procedure and the restricted procedure. In the negotiated procedure and in the competitive dialogue, by contrast, negotiation with bidders is the core of the procedure and expressly provided for. However, these types of procedure may only be chosen under the conditions laid down in law (Art. 26 Directive 2014/24/EU).

Consequences of a breach of the prohibition on negotiation

A breach of the prohibition on negotiation is a serious procurement-law violation:

The procedure may be declared unlawful by the review body.
Rounds of negotiations may lead to the setting aside of award decisions.
In EU-funded projects, financial corrections may be imposed.
In some circumstances, state-aid consequences may arise.

Legal basis

The prohibition on negotiation derives from several EU-law principles and is expressly regulated nationally.

EU: Art. 2(1)(1) in conjunction with Art. 18 Directive 2014/24/EU (principles of equal treatment and transparency as the basis of the prohibition on negotiation); Art. 56 (examination of bids)
Austria: § 112 BVergG 2018 (prohibition on negotiation in the open and restricted procedure); § 113 (clarification of bids)
Germany: § 15 VgV (clarification of bid content); § 16 VgV (subsequent request for documents)

Related terms

FAQ

Can a contracting authority renegotiate prices after bid opening? No. Renegotiation of prices is strictly prohibited in the open and restricted procedures. Even exchanges about the basic level of the bid price, for example by referring to cheaper competing bids, are impermissible. Only the correction of arithmetic errors in accordance with statutory provisions is possible.

What is the difference between a clarification discussion and an impermissible negotiation? A clarification discussion serves solely to eliminate existing ambiguities in the bid as submitted. The bid itself remains unchanged. There is an impermissible negotiation where the content of the bid – price, scope of services, quality, delivery terms – is in fact altered as a result of the discussion.

Can the contracting authority inform a bidder that their bid is the most economically advantageous? No. Disclosure of information on the relative evaluation outcome during the ongoing procedure is impermissible and can also engage the prohibition on negotiation. Such information may only be disclosed with the award decision (prior information).

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