Before choosing a procurement procedure, identify what is actually being purchased. The statutory concept of a public contract concerns the substance of an agreement, its performance obligations and consideration. Labels such as grant, cooperation or partnership are not decisive.
Supplies, services and works
Section 103 GWB distinguishes different contract categories. The buyer, contractual performance and economic arrangement must be analysed together. Mixed contracts require the applicable rules on allocation and separability. A complex technology project may contain several elements, but selecting a convenient title does not determine the governing law.
Consideration and enforceable performance
Examine what the authority receives and what obligations it can enforce. Consideration is not always structured as a simple cash purchase price. Grants, property transactions and cooperative arrangements can raise boundary questions. Public policy expectations alone should be distinguished from enforceable procurement obligations.
Concessions and other arrangements
A concession includes the relevant exploitation right and operating risk under its definition. A lease, licence or regulatory permission is not automatically a concession. Where revenue comes from users, guarantees and risk allocation still matter. The correct classification affects value estimation, procedure and available remedies.
Record the legal route
Collect the draft agreement, payment flows, performance requirements, rights, risk model and options. Determine authority status and any exemption alongside the contract classification. Only then can the relevant threshold and procedural regime be chosen reliably. Later amendments should be assessed against the arrangement originally competed.
Four practical examples
The following scenarios are illustrative, not reports of actual client matters. The outcome depends on the documents and circumstances of the individual procurement.
Example 1: Software development
An authority pays a company to develop an application. The enforceable service and consideration point towards a procurement contract. Calling the project a partnership does not remove the need to assess the rules.
Example 2: Conditional funding
A payment labelled a grant requires specific services for the authority. Examine the actual rights and duties. The heading of the funding document does not conclusively determine its legal character.
Example 3: Land and construction
A council sells land with detailed construction obligations. Assess whether the arrangement also contains a public works contract. Planning expectations and enforceable procurement obligations are different matters.
Example 4: Operating revenue
A company operates a public facility and collects fees. Examine risk and guarantees before classifying the arrangement. User payments alone do not conclusively establish a concession.
Related topics
Who is a contracting authority? · Works and services concessions · EU procurement thresholds for 2026 and 2027
Discuss your procurement
For a review, please identify the authority, contract or lot, current procedural stage and any deadline. We can then clarify the scope of the requested work. Contact our team. An enquiry does not itself create a retainer or preserve a legal deadline.
Legal sources
Official legislation and materials, some in German: § 103 GWB · § 105 GWB · § 110 GWB
Updated 13 November 2026. Illustrative guidance on German and EU procurement law.