What is a Restricted Procedure?
The restricted procedure (nicht-offenes Verfahren) is a two-stage procurement procedure used above the EU thresholds. In the first stage, the contracting authority publishes a contract notice and conducts a participation competition (Teilnahmewettbewerb) in which interested companies submit applications demonstrating their suitability. The contracting authority evaluates the applications against predefined selection criteria and invites a limited number of qualified candidates to submit bids in the second stage. Only these invited candidates may submit bids.
The contracting authority must invite a minimum number of candidates to ensure adequate competition. Under the VgV, at least five candidates must be invited in a restricted procedure, though the actual number should reflect the specific requirements and market conditions. The selection of candidates from among those who meet the suitability criteria must be based on objective, non-discriminatory, and predefined criteria communicated in the contract notice.
Unlike the negotiated procedure, the restricted procedure does not allow for negotiation with bidders after the submission of bids. The bids submitted in the second phase are final and are evaluated as received, similar to an open procedure. This makes the restricted procedure suitable for procurements where the contracting authority can clearly define its requirements but wants to limit the evaluation effort by prequalifying a manageable number of bidders.
Why It Matters for Bidders
The restricted procedure requires bidders to invest effort in two distinct phases. The application phase demands careful presentation of qualifications, references, financial capacity, and technical competence. Only companies that present strong applications will be invited to bid, making the quality of the application crucial. Companies with strong track records and relevant references have a natural advantage.
Once invited to bid, the competitive dynamics change. The reduced number of competitors means a higher probability of success for each invited bidder, but the bids must be prepared with the same rigor as in an open procedure since no negotiation is possible. Bidders should leverage the information gained during the participation phase to refine their understanding of the contracting authority's priorities and tailor their bids accordingly.
Legal Framework
The restricted procedure is regulated in Section 16 VgV for above-threshold procurement. The general framework is established in Section 119 GWB. EU Directive 2014/24/EU Article 28 sets out the European rules. The minimum number of candidates and the rules for the participation competition are specified in Section 51 VgV. Below the EU thresholds, the restricted tender (beschraenkte Ausschreibung) under the UVgO serves as a functional equivalent.