Third-Party Involvement in Procurement Law 2026

Definition: Third-party involvement refers, in procurement law, to the involvement of persons or undertakings who are not themselves contracting authorities in the preparation or conduct of a tender procedure – for example as advisers, planners or experts – and the procurement-law consequences arising from this, particularly regarding conflicts of interest and distortions of competition.

Last updated: January 2026 · Legal basis: Directive 2014/24/EU Art. 41, BVergG 2018, GWB § 6

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What is third-party involvement?

Third-party involvement in tender procedures is a frequent phenomenon in practice that requires particular legal care to safeguard the principle of equal treatment and undistorted competition. Public contracting authorities regularly call on external specialists when preparing tender procedures: consultancies prepare needs analyses, engineering offices draft specifications, and experts develop suitability and award criteria. This involvement of third parties is in principle permissible and often even necessary to ensure the requisite specialist knowledge.

The problem arises when a third party that participated in the preparation subsequently takes part in the tender procedure itself as a bidder. In that case, there is a risk that they have an information advantage over their competitors that distorts competition. EU procurement law expressly addresses this problem.

Legal basis

Art. 41 of Directive 2014/24/EU governs the handling of prior market involvement and requires contracting authorities to take active protective measures. Accordingly, the contracting authority must take appropriate measures to ensure that competition is not distorted by the participation of a previously involved third party. Measures include in particular:

• Sharing of information: All relevant information held by a previously involved third party must be made available to the other bidders.
• Setting reasonable deadlines: Extended deadlines can compensate for the information advantage.
• Exclusion of the third party: As a last resort, the contracting authority may exclude the previously involved third party from the procedure if the distortion of competition cannot be remedied by other means. Before an exclusion, however, the third party must be given the opportunity to demonstrate that their involvement has not distorted competition (right to be heard).

In Austria, the matter is governed by § 20 BVergG 2018 and the general principles of equal treatment and non-discrimination. In Germany, the legal basis is § 6 GWB together with § 7 VgV.

Distinction from conflict of interest

Third-party involvement and conflict of interest are related but not coextensive concepts. Conflict of interest primarily concerns natural persons on the contracting authority's side whose personal interests could influence the award decision (e.g. a member of staff in the procurement department who privately holds shares in a bidder undertaking). Third-party involvement, by contrast, describes the structural integration of external actors in the procurement process. In practice, both phenomena can overlap.

Related terms

• Conflict of interest
• Principle of equal treatment
• Exclusion from the tender procedure
• Market exploration

FAQ

May an adviser who drafted the specifications take part in the tender procedure? In principle yes, provided that the contracting authority takes appropriate measures to prevent a distortion of competition (e.g. by publishing all relevant information). Exclusion is only the last resort.

Must the contracting authority always exclude a previously involved third party? No. Exclusion is only permissible and required if the distortion of competition cannot be sufficiently remedied by other measures. Beforehand, the third party must be given the opportunity to comment.

What are the contracting authority's duties in the case of third-party involvement? The contracting authority must actively examine whether there is a distortion of competition and, where appropriate, take compensating measures. They may not ignore the issue.

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