Two district authorities put the same service out to tender in the same quarter. Building protection across several properties, comparable scope, comparable value. One runs an open procedure, the other a negotiated procedure with a call for competition. Neither invented its approach, both rely on a defensible legal view, and both may turn out to be right.
The reason for the difference lies in a provision many contracting authorities know only as a footnote. Section 130 of the Act against Restraints of Competition (GWB) governs the award of social and other specific services and grants freedoms that do not exist under the ordinary regime. The relevant security services are expressly listed there by CPV code. Individual public procurement tribunals have nonetheless assessed its application differently, and that carries a risk for contracting authorities worth knowing about.
This article sets out the practical and procedural consequences of the special regime. Whether Section 130 GWB applies to a particular project, which type of procedure may lawfully be chosen, and how to deal with the inconsistent case law are legal questions. They come before the choice of procedure, and they belong in other hands than ours.
What the special regime grants
Three reliefs make the difference.
Free choice of procedure. Under Section 130(1) GWB the contracting authority may choose between the open procedure, the restricted procedure, the negotiated procedure with a call for competition, the competitive dialogue and the innovation partnership. It therefore does not have to justify choosing the negotiated procedure. Ordinarily this would be otherwise: the negotiated procedure is then tied to the conditions of Section 14 VgV.
The higher threshold. For social and other specific services, the EU threshold for public contracting authorities is 750,000 euros net, and 1,000,000 euros for utilities. Unlike the other thresholds, these amounts are fixed directly in the directives and are not adjusted every two years. By way of comparison: for ordinary service contracts the threshold is a fraction of that.
Below the EU threshold the same rules do not automatically apply everywhere. What governs is the budgetary and sub-threshold procurement law applicable to you, and whether and in which version the sub-threshold procurement regulation (UVgO) applies depends on the contracting authority and on the relevant federal or state law. Different value limits and administrative provisions come on top.
Room for modification during the term. Section 130(2) GWB permits, by way of derogation from Section 132(3) GWB, a modification of the contract without a new procurement procedure where the value of the modification does not exceed twenty per cent of the original contract value. Where security requirements can be expected to change during the term, because they follow situations rather than floor areas, this room is particularly valuable in practice, and it is rarely taken into account.
It is not, however, a modification budget to be exhausted up to the limit. The twenty per cent widen the value framework; they do not replace an assessment of the individual modification. Related modifications must be aggregated, the overall character of the contract must not change, and the prohibition on circumvention continues to apply. Every modification needs to be assessed and documented on its own.
How the classification comes about
What governs is Annex XIV to Directive 2014/24/EU. The services covered are listed there by CPV reference number, and that enumeration is constitutive. Where the service being tendered falls under one of the codes named there, it is a specific service. The annex is therefore more than a guide.
For the security field it covers investigation and security services, among them guard services, surveillance services, alarm monitoring, patrol services and identity badge issuance. Anyone tendering for building protection, reception duties with security functions or patrol services is within its scope.
Two points make this harder in practice than it sounds.
The first concerns mixed contracts, and it is more intricate than it first appears. Under Section 110 GWB the classification follows the main subject matter. Before that, however, it must be examined which parts the contract actually contains and whether they are objectively separable, because separate awards then come into consideration too. For certain combinations of services and supplies the higher estimated value decides; in other constellations functional considerations come into play. Anyone bundling reception duties, security services and event stewarding into one lot must therefore take the composition apart before choosing the procedure.
One principle goes with this, and it comes under pressure in practice: the CPV code follows the service, not the desired procedure. Anyone who first decides which regime they want and then looks for the matching code has reversed the order. The route runs through a complete description of the tasks, determination of the defining principal service, selection of the codes, and justification of the classification in the procurement file.
The second concerns the classification itself. The CPV catalogue is not readily accessible to users, and correctly assigning the planned procurement to a CPV number is a precondition, not a formality. Procurement tribunals have repeatedly found that the difficulties of classification arise precisely from this catalogue.
The controversy worth knowing about
So far the position looks clear. It is not entirely.
The Rhineland procurement tribunal classified guarding services as specific services without further ado in 2019 (decision of 27 September 2019, VK 35/19). The Hessen tribunal proceeded in the same way in 2021 and merely examined whether the services sought could in fact be assigned to the relevant CPV number (decision of 17 September 2021, 69d-VK-11/2021).
The Westphalia tribunal took a different view. In proceedings concerning security services for refugee and homeless accommodation it held on 29 November 2021 (VK 1-43/21) that no specific services were involved. It did find that the services fell under the codes for guarding and alarm monitoring, but then went on to examine whether the legislature's reasons for the privileged treatment were met. The reliefs, it held, are justified because such services are provided in a person- or place-bound manner and have only a limited cross-border dimension. In the case of security services this was not apparent, since they are shaped principally by the statutory framework rather than by cultural traditions. The consequence for the contracting authority was considerable: the choice of procedure was defective, and the contract could not be awarded on that basis.
The legal literature largely regards this decision as unconvincing, because no such additional examination is provided for in the statute. To our knowledge the question has not been settled by a higher court; the current position should be checked before a specific procurement.
The two views do not, however, carry equal weight. The wording of the statute and Annex XIV point clearly towards classification by CPV code. The dissenting decision nonetheless creates a real procedural risk for as long as it stands, and a contracting authority has to handle that risk deliberately: it should justify its classification in the procurement file rather than assume it.
What we would add from a practical standpoint: the application of Section 130 GWB must follow from the classification of the subject matter, not from a wish for a particular type of procedure. Where the choice of procedure is the only reason, your entire process hangs on an open question.
Where the room to negotiate genuinely pays
Where the special regime applies beyond dispute or with legal backing, room opens up that is worth using. In our experience it pays off in three places.
One precondition applies to all three: the contracting authority must know in advance, and have described, what level of protection it needs. Protection objectives, threat picture, areas, presence and response times, minimum requirements and mandatory interfaces belong in the documents. What is negotiated is the suitable implementation of a described requirement, not the requirement itself. No tenderer may decide how secure a public building has to be.
On staffing levels. A client can rarely state precisely how many staff it needs and where. It knows its threat picture, not its translation into shift plans. A procedure in which tenderers submit concepts that are then discussed produces insights at this point that a unilaterally prescribed staffing level never delivers.
On interfaces with the client's own organisation. Who reports to whom, who decides on an evacuation, how the service fits into the existing emergency organisation. The framework has to be in the documents so that tenderers can cost it. The detailed arrangement can be settled far better in conversation than in a unilateral requirement.
On technical preconditions. Whether an existing alarm system permits connection to a receiving centre, whether a guard tour system is provided by the client or the contractor, whether access rights can technically be granted in the way intended at all. Tenderers often know this better than the client.
Where it does not help
A negotiated procedure does not replace an adequate definition of what is being procured. It can improve implementation options, and it cannot cure an unclear specification of services.
Nor is it informal haggling with individual tenderers. That the commercial elements of a tender may not be discussed at all is, however, not correct; price too can be the subject of structured negotiation. What is immovable are the minimum requirements and the published award criteria. And the principle of equal treatment applies under the special regime as well: under Article 76(1) of the directive, transparency and equal treatment are the governing principles, and part of that is that all participants hold the same relevant information at every point. What is negotiated, in what sequence and under what rules therefore has to be settled and announced in advance.
The other side: additional documentation
Documentation is required in every procedure, including the open one. In the negotiated procedure, however, a further layer comes in that does not otherwise exist: who was spoken to, when and about what, which information was passed on in the process, how the tenders changed as a result, and what ensured that everyone held the same position.
In audits and in review proceedings this is the point at which it becomes uncomfortable. It is not the choice of procedure that comes into question then, but whether everyone was treated equally during the negotiations. Anyone who does not plan for this documentation loses the advantage they gained by choosing the procedure.
When we advise the open procedure despite its being permissible
Three situations argue for not using the room.
Where the subject matter can be described in full, for instance straightforward building protection with clearly defined hours and duties, the negotiated procedure produces no additional insight and costs both sides time.
Where the contracting authority is thinly staffed. A negotiated procedure with five tenderers means five meetings, five records and a second round of tenders. Anyone unable to sustain that properly is better served by the simpler procedure.
And where political attention is high. An open procedure is easier to explain publicly, and that consideration is not a legal one but it is real.
What should be settled before choosing the procedure
Which CPV number describes the service, and was it examined or carried over?
For bundled services: which part carries the higher estimated value?
Is there a substantive reason for the negotiated procedure that goes beyond the freedom to choose it?
Is the documentation of the negotiation rounds covered in terms of staffing?
If you cannot answer the third question, save yourself the effort. The freedom of Section 130 GWB is a tool, not an advantage in itself.