Unusual Risk in Public Procurement 2026 – Risk Allocation & Tenderer Rights

Definition: An unusual risk (ungewöhnliches Wagnis) exists where the contracting authority, in the procurement or contract documents, transfers risks to the contractor which the latter cannot calculate in nature or scope and which normally do not fall within the contractor's sphere of risk.

Last updated: January 2026 · Legal status: § 7 (1) No. 3 VOB/A, § 8 EU (1) No. 3 VOB/A, § 129 GWB, § 2 (1) BVergG 2018 (principle of proportionality)

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What is an unusual risk?

The prohibition of unusual risk protects tenderers from contracting authorities shifting contractual risks that by their nature belong to the authority onto the contractor through contract drafting. The principle is expressly set out in VOB/A and applies as a general principle in supplies and services contracts too.

An unusual risk is characterised by the risk being:

1. Incalculable (the tenderer cannot meaningfully price it in when preparing the tender),
2. Outside the contractor's normal risk sphere, and
3. Not coverable by customary safeguards.

Typical case groups

Incalculable quantity risks

In construction practice the most common unusual risk is the full transfer of the quantity risk to the contractor under a unit-price contract. Where the actual quantities deviate substantially from the tendered quantities and the contractor cannot demand a price adjustment, an unusual risk is present.

Unknown ground conditions

The full transfer of the ground-condition risk to the contractor (e.g. for foundation works or earthworks) is regarded as an unusual risk where the contractor has not been provided with adequate ground investigations and the risk cannot be calculated.

Excessive contract penalties and liability rules

Disproportionately high contract penalties or liability provisions that exceed the contractor's insurable risk may qualify as an unusual risk. Contract penalties significantly exceeding the customary range (usually around 5% of the contract sum) should be examined critically.

Price risks under long-term contracts

Fixed-price clauses over multi-year contract terms without any price adjustment mechanism can constitute an unusual risk for the contractor where market price fluctuations are substantial (e.g. for energy or commodities).

Legal consequences

Procurement documents that contain an unusual risk are unlawful under procurement law. Tenderers can challenge them and demand adjustment of the documents. Where such clauses nevertheless end up in the contract, they may in individual cases be qualified as void under standard terms or public-policy rules.

In review proceedings, the public procurement tribunal can require the contracting authority to revise the documents.

FAQ

How does an unusual risk differ from normal entrepreneurial risk? The normal entrepreneurial risk (e.g. calculation or performance risks) remains with the contractor. An unusual risk is one that, due to its nature or scope, cannot be meaningfully priced in by the contractor and typically falls within the contracting authority's risk sphere.

Must a tenderer challenge an unusual risk before submitting a tender? Yes, where the tenderer has identified the unusual risk and wishes to rely on it after contract conclusion. Above the EU thresholds the duty to challenge under § 160 (3) GWB applies.

Can a contracting authority legitimise an unusual risk by paying a correspondingly higher price? No. The prohibition does not relate to the level of remuneration but to whether the risk is fundamentally calculable at all. Even a higher price does not make a structurally incalculable risk permissible.

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