Amendments to the German Public Procurement Regulation ‒ Bill to speed up public procurement ‒ Noerr Insight No 3

The draft of an act to speed up public procurement (Vergabebeschleunigungsgesetz) (hereinafter referred to as the “Bill”) is intended to constitute a major step towards adapting public procurement processes to the current needs of business and society. Within the framework of a series of news articles, the most important aspects of the Bill and the planned amendments to procurement law are explained in detail.

The first part of this series outlined the political background and the overarching objectives of the Bill and provided an overview of the main changes to legal protection in procurement matters. It was pointed out already then that the planned reform intervenes deeply in existing structures with the aim of making public procurement more efficient, digital and innovation-friendly.

The second part of this series examined the planned amendments to the German Act against Restraints of Competition ‒ ARC (Gesetz gegen Wettbewerbsbeschränkungen ‒ GWB) with regard to the organisation of procurement procedures. These resulted in far-reaching flexibilities and measures aimed at making public procurement more efficient, digital and innovation-friendly.

The third part of the series now sets out the planned changes to the Public Procurement Regulation (Vergabeverordnung ‒VgV).

A. Promotion of young companies and SMEs

The changes to the Public Procurement Regulation envisaged in the Bill are primarily aimed at promoting young companies and small- and medium-sized enterprises (SMEs). Young companies are generally those that were founded no more than eight years ago (see explanatory memorandum, pages 37 and 88).

To reduce access barriers for young companies and SMEs, the planned section 42(2) of the Public Procurement Regulation will require that, when selecting suitability criteria and evidence in accordance with section 122 on the ARC, their specific circumstances are to be appropriately taken into account in future. In addition, the intended section 17(5) (2^nd sentence) of the Public Procurement Regulation stipulates that contracting authorities may specifically address this target group when inviting tenders.

Another amendment in section 45 of the Public Procurement Regulation is intended to clarify that, in particular for young companies, there may be a legitimate reason for submitting other evidence that is simpler for the companies to provide.

The planned introduction of section 29(3) of the Public Procurement Regulation, which stipulates that payment by the contracting authority must be made no later than 30 days after receipt of an invoice, also serves to support young companies and SMEs. These entities in particular are especially dependent on reliable and prompt payment settlement.

B. Strengthening innovation

Several proposed amendments are intended to give greater support to innovative solutions. Under the planned revision of section 28(1) of the Public Procurement Regulation, environmental, social, qualitative and innovative factors could be taken into account as early as the preliminary market consultation stage.

The planned amendment to section 35(1) (1^st and 2^nd sentences) will also introduce an obligation for contracting authorities to decide on and state their position regarding alternative tenders. According to the explanatory memorandum, allowing alternative tenders can bring innovative solutions into the procurement process, including those not originally envisaged by the contracting authority, and enable them to succeed (see explanatory memorandum, page 90). Contracting authorities will therefore be required to decide in advance whether to accept alternative tenders and to state that decision in the contract notice, although no reasoning will be required. The provision aims to encourage contracting authorities to give closer consideration to the benefits of alternative tenders and thereby increase their use.

C. Acceleration of procurement procedures

In addition, amendments to the Public Procurement Regulation are planned to accelerate procurement procedures. Notably, the proposed revision of section 42(4) of the Public Procurement Regulation will make the “simplified evaluation process”, that is, assessing tenders before verifying suitability, the default legal approach in open procedures. This approach has already been applied in practice for some time. In the interests of acceleration, contracting authorities will still be allowed to deviate from the simplified evaluation process if the process would result in significantly increased costs, for example in terms of time or personnel, particularly where tender evaluation is clearly more complex than checking suitability (see explanatory memorandum, page 92).

As until now, section 48(1) of the Public Procurement Regulation will require the contracting authority to state not only the suitability criteria but also the documents to be submitted as evidence of compliance with those criteria and of the absence of grounds for exclusion, in the contract notice or the invitation to confirm interest. The Bill further proposes to amend the provision so that the contracting authority must also specify when each document is to be submitted. This is intended to enable candidates and tenderers to see clearly which documents must be provided at which stage. The planned amendment to section 48(2) of the Public Procurement Regulation will give effect to the new provision in section 122(3) (2^nd sentence) of the ARC (see section G of our Noerr Insights of 6 August 2025). Under this rule, only those companies identified by the contracting authority as having a realistic prospect of success will be required to submit documents going beyond the self‑declaration. Accordingly, contracting authorities will in principle no longer request documents beyond the suitability declaration to be submitted together with the tender in procedures without a prior selection stage, or with the request to participate in procedures with a selection stage. Instead, such documents will only need to be submitted at a later stage and only on request by the contracting authority.

The Bill also provides that it will be at the contracting authority’s discretion how many companies it invites to submit further documents. The authority will likewise be free to define the group of companies with realistic prospects narrowly, for example, in an open procedure it may request additional documents only from the most promising tenderer. Where the contracting authority has limited the number of candidates in accordance with section 51 of the Public Procurement Regulation, it must take this into account when issuing such requests.

The planned section 48(2) ( 2^nd sentence) of the Public Procurement Regulation will provide that, when requesting documents, the contracting authority must set an appropriate deadline for their submission. If a company fails to submit the documents within the deadline set, the provisions of sections 56 and 57 of the Public Procurement Regulation will apply accordingly. The contracting authority may request the documents subsequently under section 56 of the Public Procurement Regulation or must exclude the tender from evaluation under section 57(1)(2) of the Public Procurement Regulation.

D. Amendment of the provision on requesting documents

Section 56(2) of the Public Procurement Regulation, which currently allows the contracting authority to request documents from a candidate or tenderer while complying with the principles of transparency and equal treatment, will be amended to align more closely with the wording of the Public Procurement Directive.

The existing distinction in the provision between requesting company‑related and performance‑related documents will be removed as in practice this has sometimes led to difficulties in drawing a clear line between the two. The aim is to prevent companies from being excluded from the procurement procedure too quickly due to formal errors in their submission, despite in substance meeting the necessary criteria. The possibility for the contracting authority to request documents will remain a matter of discretion (see explanatory memorandum, page 96).

A difficulty here, however, is that the wording of the proposed section 56(2) of the Public Procurement Regulation partly conflicts with section 48(7) of the Regulation insofar as the new section 56(2) of the Regulation would in future provide for the clarification of incomplete or incorrect documents that have already been submitted. Clarifying the documents already submitted first presupposes a need for clarification and is governed by section 48(7) of the Public Procurement Regulation; it therefore does not constitute the subsequent submission of new documents, i.e. the requesting of documents. In its current version, section 56(2) of the Public Procurement Regulation therefore does not refer to the clarification of documents that have been submitted. The wording in the proposed section 56(2) of the Public Procurement Regulation could thus, in view of the reference to “clarification”, give rise to serious demarcation issues in relation to section 48(7) of the Regulation, particularly regarding the question of whether the mandatory exclusion ground under section 57(1)(2) of the Public Procurement Regulation – which clearly does not apply to section 48(7) to the Regulation – should apply in future to a failure to provide clarification under section 56(2) of the Public Procurement Regulation. The explanatory memorandum, which also focuses on the subsequent requesting of documents, does not address this point.

E. Outlook and conclusion

In summary, the planned amendments to the Public Procurement Regulation continue the momentum of the Procurement Acceleration Act, implementing measures to increase flexibility, speed and innovation in procurement law. In particular, by formalising the already common practice of assessing tenders before verifying suitability, procedures can be further accelerated.

The amendments to the Public Procurement Regulation are aimed particularly at promoting young and innovative businesses as well as SMEs. It is precisely for this reason that newcomers and forward‑looking start‑ups will be able to gain greater prominence in public procurement, thereby enabling contracting authorities to benefit from more innovative solutions.

It remains to be seen in the course of the parliamentary procedure whether the legislature will make a legally robust adjustment regarding the distinction between the clarification of documents already submitted under section 48(7) of the Public Procurement Regulation and the requesting of documents under section 56(2) of the Regulation, which is reinforced by an exclusion ground in section 57(1)(2) of the Regulation.

In the fourth part of this series, we will examine the planned amendments to the German Concession Procurement Regulation (Konzessionsvergabeverordnung) and the German Defence and Security Procurement Regulation (Vergabeverordnung Verteidigung und Sicherheit). These focus primarily on reducing documentation requirements in the area of concession awards as well as on flexible acceleration and European cooperation in the defence and security sector.