Access to the European market through public procurement

International potential of European public procurement law

Public procurement is the perfect opportunity to enter the European market. The Principles of European public procurement law ensure fair competition for companies from outside the EU. We guide companies through the complex tendering process.

Thema: Access to the European market through public procurement

Financial potential of European public procurement

Europe: Every year, over 250 000 public authorities in the EU spend around 14% of GDP (around EUR 2 trillion per year) on the purchase of services, works and supplies. (Public procurement - European Commission (europa.eu))
(approx. 13.6% of GDP).

Germany: Approximately, 15% of GDP (approx. EUR 500 billion EUR per year) goes to public procurement (Public Procurement in Germany – OECD)

Public authorities purchase services, works and supplies in many sectors such as IT, infrastructure, energy etc.

We support European and non-European companies in successfully bidding for government contracts and, if necessary, in enforcing their rights in review proceedings. Contact us now!

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FAQ regarding public procurement law in the EU / Germany

Can companies based outside the EU participate in procurement procedures in the EU?

Yes, companies based outside the EU are allowed to participate in European procurement procedures.

What market barriers exist for companies based outside the EU ?

There are significant barriers for companies from outside Europe to enter the European Union Market.
The main barriers to enter the market are customs duties and non-tariff barriers.
The situation is slightly different for companies based in a non-European country with which the EU has concluded a free trade agreement. For example, the Comprehensive Economic Trade Agreement (CETA) between the EU and Canada has removed many market barriers for Canadian companies.

Which are the key benefits of CETA (Comprehensive Economic trade agreement) for Canadian companies?

CETA has brought a lot of benefits for Canadian companies who are entering the European market, e.g.

Elimination of almost 99% of all customs duties
Reduction of Technical Barriers to Trade
Temporary residence of employees and freelancer
Labour mobility
Liberalisation of trade in services
Mutual recognition of different professional qualifications
General rules of origin

What are the advantages of tenders in the EU?

The principles of European public procurement law allow for transparent competition in which all companies must be treated equally, e.g.
- No preference for local companies
- Selection on the basis of objective award criteria
Public authorities are solvent debtors.
Generally, no risk of insolvency of public authorities.

What can be subject to procurement procedures in the EU?

Public contracts and concessions can be the subject of procurement procedures in the EU.

Public contracts include

Supply contracts, which means contracts for the provision of goods (e.g. standard merchandise, furnishings, computer hardware, computer software, machinery, motor vehicles, building materials etc.)
Contracts for construction services (e.g. structural or civil engineering work)
Service contracts (e.g. consulting services or planning services)

The classification of the type of contract is based on European law. If public contracts have a defense or security-specific subject, special regulations apply.

Concessions are contracts whereby a concession grantor entrusts an undertaking with the execution of works/provision and management of services. The consideration for the undertaking to provide the work/services consists either solely in the right to exploit those or in that right together with payment (e.g. operation of a railroad line, operation of a public swimming pool or airport). In contrast to public contracts, the operating risk for the use of the work or for the exploitation of the services passes to the concessionaire.

In which case does a contract have to be awarded in accordance with EU public procurement law?

In principle, procurement must be made in accordance with EU public procurement law if

a public contracting authority
awards a public contract or concession to a company and
the value of the contract/concession reaches or exceeds the relevant EU threshold and
no exceptions apply.

Who procures under EU public procurement law?

Contracting authorities that are subject to EU public procurement law are

public contracting authorities,
sector contracting entities and
concession grantors.

These can be amongst others federal, state authorities and local municipalities.

Is there a general public procurement law for all member states of the EU?

"Public procurement law" refers to the entirety of the rules and regulations that prescribe a certain procedure for the state, its authorities and institutions when purchasing goods and services that are required to fulfill the tasks of the respective institutions.

European Union

In the European Union, a uniform procurement law regime applies to the entire European market. The European regulations are defined in various directives and are transposed into national law by each member state. These European legal requirements apply if the contract value of the procurement subject reaches or exceeds the relevant threshold.

Germany

Below the threshold, the European regulations generally have no influence on the procurement process. In this case, the different national regulations of the respective member states apply. In Germany, national procurement law is a special part of budgetary law.

What are the current thresholds?

Current threshold values, net in each case

Construction contracts: 5.538.000 €
Supply/service contracts: 143.000 € (upper and supreme federal authorities) / 221.000 € (other contracting authorities)
Sector-specific procurement: 5.538.000 € (construction contracts) / 443.000 € (Supply/service contracts)
Concessions: 5.538.000 €
Social and other special services: 750.000 €

The thresholds are adjusted by ordinance in regular intervals. The next adjustment is expected to take effect on 01/01/2026

How is the awarded contract structured?

At the end of a procurement procedure, a contract is concluded between a contracting authority and a company.

This contract can be drafted very differently in respect of its term and conditions. During its term, the contract can only be significantly modified in exceptional cases.

Where can I find European public tenders?

In general, tenders for public contracts that fall under EU public procurement law must be published on TED (Tenders Electronic Daily portal). TED is the online version of the Supplement to the Official Journal of the European Union.

Contracts that do not not fall under EU public procurement law can be published on TED or on national public procurement portals.

Are the contract notices also in English?

In TED the basic information for tenders is available in all official EU languages and therefore also in English.

The full notices only need to be published in one official EU language.

Can I participate in procurement procedures together with other companies?

Yes, companies can participate together in several ways:

Bidding consortium: Several companies can join to form a consortium and bid jointly.
Subcontractor: A bidder can subcontract part of the tendered contract to a third party. In this case, the bidder concludes a separate contract with the subcontractor. The contracting authority's contractual partner is exclusively the bidder itself.

If companies participate jointly in an award procedure, this must be declared to the contracting authority in the request to participate or tender during the procurement procedure.

Which requirements are expected of me as a bidder in procurement procedures?

In a procurement procedure, the contracting authority can set specific minimum requirements for eligibility and performance.

The law defines the following eligibility criteria, which each relate to the person of the bidder:

Qualification and license to practice the profession (e.g. registration in the commercial register; special requirements for international companies)
Economic and financial standing (e.g. sales figures or professional liability insurance)
Technical and professional ability (e.g. experience to be proven by references, description of technical equipment, quality management measures)
The eligibility criteria must be related to the subject matter of the contract and in proportion to it.

The contracting authority specifies the functional and performance requirements for the subject of performance in the tender specifications. The service offered must fulfill the minimum requirements for the subject of performance in any case.

Who wins the tender?

The most economical tender is awarded the contract.

The most economical tender is determined on the basis of the specific award criteria in the procurement procedure.

If the price is the only award criterion, the tender with the lowest price is awarded the contract.

In addition to the price, performance-related award criteria can also be established. In this case, the tender with the best price-performance ratio is awarded the contract.

Who can I report to if something in the procurement procedure seems incorrect to me?

Tenderers that notice violations in the procedure can request a review of the procedure. It will be reviewed by a court of law or by an independent review body in the EU country in which the tender was published.

However, in most cases, an alleged violation must be notified to the contracting authority first.

If you need help in enforcing your rights, we will be on hand to help.