Sham Tender in Procurement Law 2026 – Manipulation and Legal Consequences

A sham tender simulates a competitive procurement procedure even though the contractor has already been determined. Definition, detection and legal consequences.

Definition: A sham tender is a manipulated procurement procedure in which the public contracting authority or persons involved have already chosen the intended contractor in advance, despite formally running a tender, and design the procurement documents in such a way that only this contractor can meet the requirements.

Last updated: January 2026 · Legal basis: § 298 StGB; § 168b StGB (AT); § 97(2) GWB; BVergG 2018

What is a sham tender?

A sham tender is manipulation of the procurement procedure on the contracting authority's side: while a proper competitive procedure is presented to the outside world, the outcome is in fact predetermined. The sham tender breaches the core principles of procurement law – competition, transparency and equal treatment – in their most serious form. It differs from bid-rigging in that the manipulation comes from the contracting authority itself (or in collusion with one bidder), whereas in bid-rigging the bidders coordinate among themselves.

Forms of sham tenders

Sham tenders appear in various forms:

Tailor-made specifications: the procurement documents are drafted to fit precisely the products or services of a particular bidder and effectively exclude all others.
Manipulated selection criteria: eligibility requirements that only the intended contractor can satisfy (e.g. specific certifications, minimum company size).
Selective disclosure of information: a bidder is fed confidential information (e.g. competitors' bids, budget ceilings) that gives it an unlawful competitive advantage.
Brand-name specifications: prescribing branded products without the procurement-law-required "or equivalent" qualifier.

Legal consequences

Sham tenders have serious civil-law, criminal and procurement-law consequences.

Under procurement law, affected bidders may challenge the procedure in review proceedings; the review body may declare the procedure unlawful, annul the tender and order it to be repeated. Concluded contracts can be declared void where the sham tender constitutes a particularly serious breach of procurement law.

Under criminal law, breach of trust (§ 266 StGB / § 153 StGB AT), corruption and bribery offences (§§ 331 ff. StGB / §§ 304 ff. StGB AT) and anti-competitive arrangements may all come into play.

Distinction from permissible specifications

Not every function-specific specification is a sham tender. Contracting authorities may define the service to be procured precisely, provided the requirements are objectively justified and proportionate. A sham tender only exists where requirements are set arbitrarily and solely to favour a particular bidder.

Related terms

FAQ

How can I, as a bidder, spot a sham tender? Indicators include: extremely specific requirements without objective justification, requirements that only one company can meet, very short tender deadlines, and wording that mirrors the product descriptions of a particular supplier.

What can I do as a bidder if I suspect a sham tender? You can submit a bidder query, formally object to the discriminatory requirements and, if necessary, file a review application. A complaint to the competition authority is also an option.

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