What is a Negotiated Procedure Without Publication?
The negotiated procedure without publication (freihaendige Vergabe) is a procurement procedure used below the EU thresholds in Germany, in which the contracting authority directly approaches and negotiates with one or more companies without a prior public announcement. This is one of the least formal procurement procedures available under German law and is only permissible under specific circumstances defined in the applicable procurement regulations.
In a negotiated procedure without publication, the contracting authority identifies potential suppliers, invites them to submit offers or enter negotiations, and awards the contract based on the negotiated terms. There are no mandatory minimum deadlines or formal procedural stages as required in open or restricted procedures. However, the contracting authority should generally invite at least three companies to ensure a minimum level of competition, unless the specific circumstances justify approaching fewer suppliers.
This procedure is permitted when the nature of the service does not allow for a precise specification in advance, when only a limited number of suppliers exist in the market, when urgency precludes a formal tender procedure, or when the estimated contract value falls below the applicable thresholds for more formal procedures. The decision to use this procedure must be documented and justified, and the principles of economy, efficiency, and non-discrimination still apply.
Why It Matters for Bidders
Being invited to a negotiated procedure without publication represents an opportunity for direct engagement with the contracting authority. Unlike formal tender procedures where interaction is limited, this procedure allows for genuine dialogue about the scope of services, technical approaches, and commercial terms. Bidders can tailor their proposals more precisely to the contracting authority's actual needs.
However, access to these procedures depends heavily on market visibility and established relationships. Companies should invest in building their reputation with relevant contracting authorities, maintaining updated listings in supplier databases, and proactively marketing their capabilities to public sector customers.
Legal Framework
The negotiated procedure without publication is regulated in Section 12 UVgO for supply and service contracts below the EU thresholds. For construction works, VOB/A Section 1 Paragraph 3 (4) contains analogous provisions. Above the EU thresholds, the conceptually related but procedurally more formal negotiated procedure without prior publication is governed by Section 17 VgV in conjunction with Section 14 (4) VgV.