In its decision of 4 November 2025 (Case 6 Verg 3/25), the OLG Naumburg clarified the requirements for using a negotiated procedure with prior call for competition after an unsuccessful open procedure pursuant to Sec. 14(3)(5) VgV. According to this provision, a negotiated procedure may only be chosen if a previous open or restricted procedure without prior call for competition failed due to a lack of suitable offers—and the subject matter in the new procedure is identical to that of the failed procedure.
Identity of Subject Matter as a Key Requirement
The OLG Naumburg emphasized that a negotiated procedure is not permissible if the subject matter in the subsequent procurement procedure differs significantly from the original. In the case at hand, the first procedure aimed at “upgrading” existing software, while the second involved a complete redevelopment and new concept. Thus, the required identity of the subject matter was lacking.
Impact on Transparency and Equal Treatment in Procurement Law
Application of Sec. 14(3)(5) VgV requires that the contracting authority does not create the prerequisites for a negotiated procedure by subsequently changing or expanding the scope of services. Otherwise, the principles of transparency and equal treatment in procurement law would be undermined. The OLG made it clear that a substantial change in the scope of services after a failed open procedure does not justify switching to a negotiated procedure.
Consequences for Public Authorities When Choosing Procedures
Public authorities must strictly observe the identity of the subject matter when selecting the procurement procedure. Circumventing procedural requirements by subsequently modifying the scope of services is impermissible and may lead to the annulment of the award decision.
