Which sphere the act governs
This is the point most often missing from summaries. It also decides whether the act touches a given project at all.
The act governs public procurement above the EU thresholds. It amends principally the act against restraints of competition, the procurement ordinance and the utilities ordinance.
For construction works that means: the EU threshold sits at €5,404,000 net. A substantial share of construction procurement falls below it and is not directly caught.
The VOB/A thresholds raised on 1 January 2026 are a separate matter. They concern the below-threshold sphere and rest on a separate amendment to the VOB/A. The system is covered in the article on procurement routes and thresholds.
The responsible federal ministry has announced that the new content will be carried into the VOB/A. Until then a transitional position exists in which both levels must be checked. A fundamental recasting of the below-threshold ordinance has also been announced.
Lotting gets its own provision
The most far-reaching change concerns division into lots. The principle is lifted out of its former location and given its own provision, § 97a, headed Losgrundsatz.
In principle nothing changes. Works must still be awarded divided by quantity as partial lots and separated by type or specialism as trade lots. The familiar exceptions on economic or technical grounds remain.
New is an exception for major projects. Lotting may be departed from where four conditions are cumulatively met.
- the contract value reaches at least twice the applicable EU threshold,
- a connection exists to transport infrastructure projects or to the special fund for infrastructure and climate neutrality,
- division into lots would demonstrably prevent rapid delivery, and
- the urgency was not caused by the client.
The transport infrastructure projects covered are exhaustively defined. They comprise rail infrastructure, federal trunk roads, federal waterways and airfields.
By way of counterweight, the client may oblige the contractor to give particular consideration to the interests of small and medium-sized enterprises when subcontracting. The obligation is discretionary and not an automatic consequence.
Assessments differ in the professional literature. Some see a substantial dilution of the previous rule-and-exception relationship and a weakening of the competition principle. Others regard the change as limited, because whole-project award was already possible on economic or technical grounds and what is chiefly eased is the documentation.
A statutory evaluation is provided for by 30 September 2027. Until then it remains open which of the two assessments holds.
Evidencing suitability becomes staged
For tenderers this is the most tangible relief in the whole act. Three changes work together here.
| Change | Content |
|---|---|
| Primacy of the self-declaration | evidence of suitability and of the absence of exclusion grounds should regularly be furnished by self-declaration |
| A staged model of evidence | further documents should be required only from candidates or tenderers in contention |
| Proportionality made concrete | suitability criteria must stand in an appropriate relationship to the subject and value of the contract |
The third point targets a widespread practice. It means reference requirements pitched at projects well above the scale tendered, narrowing the field without objective justification.
The system is covered in the article on suitability and self-declaration. It also sets out which evidence must still be produced at award.
Legal protection is constitutionally open
This is the most contested part of the reform and deserves careful statement. The new rule stands; its constitutionality does not.
| Point | Content |
|---|---|
| The new rule | the suspensive effect of an immediate appeal against decisions of the procurement tribunals falls away; a remedy no longer halts the award automatically |
| The open question | the constitutionality of this restriction on primary legal protection is unsettled; a higher regional court has referred a comparable rule to the Federal Constitutional Court |
In practice the case law on this point must be followed closely. For unsuccessful tenderers the new rule means acting earlier and more decisively than before.
What the act did not change
The reform operates within the latitude of the European procurement directives. The EU framework is unchanged.
| What is unchanged | Why |
|---|---|
| Competition, transparency and equal treatment | they remain the governing principles of procurement law |
| The structure of the procedure | publication, tender period, checking, evaluation, award |
| The VOB/B and VOB/C | they govern the contract, not the procurement |
| The specification | it remains bound to the principle of clear and exhaustive description |
An assessment found in the literature captures the point of the reform. This is not a reordering of procurement law but a return to its procedural core.
What follows for the cost side
Three effects bear on cost work.
| Effect | Consequence for cost work |
|---|---|
| On major projects the lotting may change | a whole-project award produces a different price level than trade lots, because it narrows the field and prices in a coordination service |
| Procedures become shorter | the interval between cost calculation and receipt of tenders shrinks, reducing the risk of the calculation going stale |
| Demands on preparation rise | where formal hurdles fall away, the substantive quality of the tender documents decides; an incomplete specification does not improve, it takes effect faster |
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This article reflects the position of the legislation and professional discussion at the date of checking and serves professional orientation. It does not constitute legal advice and does not replace assessment of the individual case.