EU Public Procurement Act 2026: What Articles 33 and 34 Would Change About Negotiation

Buried in the European Commission's proposed Public Procurement Act is a change that procurement teams should read closely: the new open procedure could include negotiation.

Not free-form negotiation. Not negotiation of every term. And not yet law.

The proposal, published on 9 September 2026, still has to go through Parliament and Council and may change substantially. But Articles 33 and 34 are specific enough to show how the Commission wants negotiation to work if this architecture survives.

The practical shift is significant. A public buyer could enter a formal procedure knowing that parts of the offer may be discussed and improved after the first tender, while other parts remain fixed. That puts much more weight on a question that legislation cannot answer for the buyer: what are we actually prepared to move?

Article 33 draws the negotiating boundary

Proposed Article 33 is titled “Conduct of negotiations”. It would require public buyers to preserve equal treatment, proportionality and genuine competition while protecting the commercial interests of participating suppliers.

Within those safeguards, buyers could negotiate non-essential characteristics of the works, supplies or services. The proposal explicitly mentions technical merit, quantity, delivery conditions and other commercial aspects.

The boundaries are just as important. Exclusion grounds, selection criteria and award criteria would not be negotiable. Buyers would have to identify non-negotiable characteristics in the public summary of competition, including essential contract conditions on which suppliers would reasonably rely when deciding whether to participate. Negotiation could not substantially alter the subject matter of the contract.

That creates a very different conversation from private-sector bargaining where almost any variable can sometimes be reopened if both sides see value in doing so.

Imagine a first tender that is technically strong but above budget. The buyer may be able to discuss quantity, delivery or another commercial element. It cannot improvise a new award criterion halfway through the process or quietly change an essential contract condition after suppliers have decided whether to bid.

The negotiating space therefore has to be designed before anyone sits down with the supplier.

Article 33 would also allow one or more negotiation rounds. Suppliers could submit revised tenders between rounds, and the buyer could reduce the field using the published award criteria before inviting final tenders.

That is meaningful room to negotiate. It is also tightly structured room.

Article 34 changes where negotiation can appear

Article 34 is what makes the proposal operationally interesting.

Under the proposed open procedure, the public summary of competition would state whether the buyer intends to negotiate. If no negotiation is planned, the contract can be awarded on the first tenders. If negotiation is announced, eligible participants would be invited into negotiations under Article 33 before final tenders are requested.

The proposal even allows a buyer that announced an intention to negotiate to award directly on the first tenders, provided that option was reserved from the start.

So this is not a blanket licence to negotiate every public contract. It is a proposal to make negotiation an explicit, pre-declared part of a central procurement procedure.

If adopted in that form, many public buyers who are currently more accustomed to evaluating bids than improving them through a live commercial exchange would need a broader skill set.

Permission to negotiate is the easy part

Suppose the strongest tender offers faster delivery at a premium. The buyer has room to discuss delivery conditions. What should it ask for?

That depends on the mandate. How valuable is the earlier delivery? Which operational risk does it remove? Is the premium defensible? Could quantity, phasing or another commercial term be traded instead? Which conditions are essential and therefore fixed? What happens if the supplier refuses movement?

Those questions cannot be solved during the negotiation without creating risk. If the organisation has not answered them beforehand, the buyer starts discovering its real priorities through concessions.

Public procurement makes this particularly unforgiving because the conversation has to remain consistent with the procedure. A private buyer can sometimes test a spontaneous idea with one supplier and decide later whether it was useful. A public buyer has duties of equal treatment and transparency that shape what information can be shared, how changes are handled and how remaining tenderers are treated.

Article 33 reflects that. If specifications or other procurement details change during a negotiation round, the remaining tenderers would have to be informed and given enough time to amend their tenders.

Commercial skill therefore sits inside a procedural frame. The buyer has to improve the offer without creating an advantage that cannot be defended afterwards.

Internal disagreement becomes more dangerous when the external process is flexible

Public procurement increasingly asks buyers to balance price with resilience, security, sustainability, innovation and implementation risk. Those priorities rarely belong to one person.

Finance may want affordability. Operations may value continuity. Security may worry about dependency. Technical teams may prefer the solution with the least implementation risk.

A formal negotiation with the market will not resolve those disagreements for the organisation. It will expose them.

If operations has never said how much earlier delivery is worth, the buyer cannot trade intelligently on delivery. If technical stakeholders privately reject every alternative, a claim of competitive leverage becomes fragile. If nobody has decided which contract conditions are genuinely essential, the negotiation risks becoming either needlessly rigid or too loose.

This is where the broader idea of adaptive negotiation flexibility becomes relevant. Flexibility is useful only when the buyer knows what changed, what remains fixed and why.

What procurement leaders should take from the proposal now

The Public Procurement Act is still a proposal. Organisations should not rewrite procedures as though Articles 33 and 34 were already law.

But the text is concrete enough to reveal a capability requirement worth preparing for.

Public buyers may need to become comfortable with structured commercial negotiation while staying inside stricter boundaries than a private buyer would face. That means clearer mandates, better distinction between negotiable and non-negotiable elements, stronger questioning, disciplined trades and an audit trail that still makes sense after the conversation is over.

Legal training will explain what the final regulation permits. It will not create the judgement needed to use that permission well.

That is the real change hidden in Articles 33 and 34. More room to negotiate does not make procurement easier. It makes the quality of the buyer more visible.

Sources

• European Commission (9 September 2026). Proposal COM(2026) 590 for a Regulation on public contracts and concessions, the proposed Public Procurement Act.
• European Commission, COM(2026) 590. Full proposal on EUR-Lex, especially Articles 33 and 34.