prohibition on negotiation

The prohibition on negotiation is a fundamental principle in public procurement that prevents contracting authorities from negotiating with suppliers on the content of their tenders after the submission deadline. Under EU Directive 2014/24/EU, this rule applies to open procedures and restricted procedures — the two most commonly used procurement procedures above EU threshold values.

How does the prohibition on negotiation work?

In an open or restricted procedure, the tender as submitted by the deadline is the basis for evaluation. The contracting authority cannot ask suppliers to improve their price, delivery terms, or any other aspect of their offer — regardless of whether the change would affect the ranking.

The prohibition does not mean all contact between the parties is forbidden. Contracting authorities may request clarification, supplementary information, or correction of apparent errors, provided the request does not lead to an improvement of the tender. Drawing the line between a lawful clarification and an unlawful negotiation is one of the most debated questions in procurement law, and national review bodies across the EU regularly address this distinction.

When does the prohibition apply?

• Open and restricted procedures: The prohibition applies in full. If a contracting authority needs flexibility to negotiate, it must choose an alternative procedure — typically the competitive procedure with negotiation or competitive dialogue.
• Below-threshold procurements: Many EEA countries allow greater flexibility for below-threshold contracts, including procedures with a right to negotiate.
• After the award decision: Some jurisdictions debate whether the prohibition extends beyond the award decision to the signing of the contract — a question that remains unsettled.

Tools like Cobrief help suppliers quickly identify which procedure a contract notice uses, making it easy to understand whether negotiation is on the table.

The prohibition on negotiation ensures that competition is decided on the basis of tenders as actually submitted, upholding the principles of equal treatment and transparency. For suppliers, it means putting forward the strongest possible offer from the start — there is no second chance to improve.