GERMANY Law and Practice Contributed by: Bettina Mertgen, Felix Siebler, Michael Herold and Sebastian Faust, GvW Graf von Westphalen
restrictive measures can protect the relevant security interest. Procurement documents must specify applicable security requirements. Depending on classification level, bidders and relevant subcontractors may need facility and personnel security clearances, secure premises, accredited IT systems and procedures for handling classified material. The Security Clearance Act, the Federal Classified Information Directive and the industrial security framework apply alongside pro - curement law; clearance timelines should be reflected in the procurement timetable. A staged information model can preserve competi - tion: authorities may publish an unclassified functional description, disclose detailed information only to pre- qualified and cleared candidates, and use secure data rooms or classified annexes. All remaining tenderers must receive equivalent information at equivalent stages. Security obligations should extend to consortium members and critical subcontractors accessing pro - tected information. Contracts should address person - nel changes, cybersecurity incidents, foreign owner - ship changes and post-contract handling of classified material. Over-classification may unnecessarily reduce the supplier base and reinforce incumbent dependency. Authorities should assess whether redaction, staged disclosure or contractual confidentiality can provide sufficient protection. 2.5 Tender Procedures for Defence Contracts Under the Ordinance on the Award of Public Con - tracts in the Defence and Security Sectors, both the restricted procedure and the negotiated procedure with prior publication are available as standard pro - cedures – unlike the general regime, no exceptional circumstances are required for a negotiated procedure with competition. The negotiated procedure is particularly suited to complex defence acquisitions, allowing technical solutions, delivery models, security of supply, IP rights, life cycle support, risk allocation and pricing to be
refined through structured negotiations. The authority must identify non-negotiable minimum requirements, disclose award criteria and ensure equal treatment throughout. A robust process typically includes an initial tender, defined negotiation rounds, equal infor - mation protocols and a clearly identified final-tender stage. Competitive dialogue may be appropriate where the authority cannot objectively determine the technical, legal or financial solution. The Bundeswehr Procure - ment Acceleration Act also facilitates innovation part - nerships, preliminary market consultations, functional specifications and design competitions. Functional requirements can open the market to alter - native solutions and dual-use technologies, but must be sufficiently precise to produce comparable tenders. Early market engagement is critical in concentrated markets – testing available products, development needs, production capacity, IP constraints, export control dependencies and opportunities for non-tra - ditional suppliers. Open interfaces and interoperability standards can reduce vendor lock-in. The temporary relaxation of the lotting principle pro - vides greater freedom for integrated capability con - tracts. A single overall award may accelerate delivery, but competing prototypes, separate capability incre - ments or independently procurable interfaces may better preserve innovation and future competition. 2.6 Direct Contract Awards and Single- Source Procurement Direct awards and negotiated procedures without pri - or publication are permissible only in defined excep - tional circumstances, including unsuccessful prior competition, technical or IP exclusivity, crisis-related urgency, compatibility-dependent additional deliver - ies and specified R&D requirements. Government-to- government contracts, multinational programmes and Article 346, TFEU procurements may fall outside the ordinary regime where their statutory conditions are met. The Bundeswehr Procurement Acceleration Act per - mits interim awards where competitive timelines can -
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