Replacement Delivery in Procurement Law 2026
Replacement delivery in procurement law: contractor's obligation to redeliver defect-free goods as a form of cure for defects in supply contracts.
Definition: Replacement delivery refers, in procurement law, to the performance of a supply contract by redelivering a defect-free item as an alternative to repair, which the contractor owes under warranty if the product delivered does not conform to the agreed specifications.
Last updated: January 2026 · Legal basis: §§ 437, 439 BGB, § 932 ABGB, VOL/B, BVergG 2018
What is replacement delivery in procurement law?
Replacement delivery is a form of remedying defects (cure) in supply contracts: the contractor replaces the defective delivery with a new, contract-compliant delivery. It generally exists alongside repair as an equivalent way to restore the contractually agreed state. In Germany, under § 439(1) BGB, the right to choose between replacement delivery and repair rests with the buyer (here: the public contracting authority as customer).
In the procurement-law context, replacement delivery is relevant above all in supply and framework agreement procedures in which products are procured regularly or in larger quantities.
Requirements for replacement delivery
The prerequisite for replacement delivery is the existence of a material defect: the product delivered does not match the agreed characteristics, is not fit for the assumed use, or deviates from the sample or specimen.
The public contracting authority must give notice of the defect promptly after discovery (notice of defect). If it fails to give timely notice, it can lose its warranty claims.
Relationship to other warranty rights
Replacement delivery is the primary warranty right; only if cure fails, is refused or is unreasonable to expect from the contracting authority can other rights be invoked.
Overview of legal consequences:
- Cure (replacement delivery or repair) – primary
- Withdrawal from the contract – after failed cure
- Price reduction – as an alternative to withdrawal
- Damages – in cases of fault on the contractor's side
Replacement delivery in procurement practice
In practice, public supply contracts often contain specific clauses on replacement delivery, in particular concerning deadlines, transport costs, and the handling of defective goods. Contracting authorities should ensure that the tender documents contain clear provisions on warranty periods and the procedure in case of defects.
FAQ
Can the contracting authority choose between replacement delivery and repair? In Germany, the right to choose lies with the contractor, provided the chosen type of cure does not entail disproportionate costs. Differing contractual arrangements are possible.
How long is the warranty period for public supply contracts? The statutory warranty period in Germany and Austria is in principle two years from delivery. Deviations through general terms or contract are possible within narrow limits.
What applies if the contractor refuses replacement delivery? In this case, the contracting authority can assert withdrawal, price reduction or damages and – in the case of ongoing supply contracts – terminate the contract where appropriate.
Last updated: January 2026 All information without guarantee. For legally binding advice, please contact a law firm specialising in procurement law.
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